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U.S. v. Oleck

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


filed: January 25, 1990; As Corrected, January 25, 1990.

THE UNITED STATES
v.
PHILIP HENRY OLECK AND DAVID BEDELL, DAVID BEDELL, APPELLANT

On Appeal From the United States District Court for the Western District of Pennsylvania, D.C. Crim. No. 87-138.

Becker, Greenberg and Van Dusen, Circuit Judges.

Author: Becker

Opinion OF THE COURT

BECKER, Circuit Judge.

This appeal presents the same question as that posed in the companion case, United States v. Gozlon-Peretz, 894 F.2d 1402, i.e. whether the district court had authority to impose a term of supervised release for a sentence imposed pursuant to 21 U.S.C. § 841(b)(1) for an offense committed after October 27, 1986, the date of enactment of the Anti-Drug Abuse Act of 1986 (ADAA), but before November 1, 1987, the effective date of ADAA section 1004.*fn1 Appellant David Bedell was convicted under § 841(b)(1)(B) for an offense committed on July 1, 1987. He was sentenced on December 8, 1987, to a term of five years of imprisonment, followed by four years of supervised release. Bedell argues that neither special parole nor supervised release was available for offenses committed on that date.*fn2

Bedell differs from appellant Gozlon-Peretz in that Gozlon-Peretz was convicted under § 841(b)(1)(A), not § 841(b)(1)(B). This difference could be seen as crucial because the Comprehensive Crime Control Act, Pub.L. No. 98-473, 98 Stat. 1837, 1976 (1984) ("the Act"), apparently inadvertently, left out both special parole and supervised release for the newly created § 841(b)(1)(A) offenses. Bedell was sentenced under § 841(b)(1)(B), which contained a special parole term.*fn3 Thus, as the fourth, fifth, and eleventh circuits have done, see United States v. Byrd, 837 F.2d 179, 181 (5th Cir. 1988), United States v. Whitehead, 849 F.2d 849, 860 (4th Cir. 1988), and United States v. Smith, 840 F.2d 886 (11th Cir. 1988), we could rule that because special parole was available in § 841(b)(1)(B), and because it is not clear when Congress meant the ADAA amendments to the Act to go into effect, Bedell should be sentenced to a special parole term. However, for the reasons set forth in Gozlon-Peretz, we believe that the correct reading of the ADAA is that supervised release replaced special parole in §§ 841(b)(1)(A), (B) and (C) as of the date of the ADAA's enactment, October 27, 1986. Therefore, we hold that supervised release was the proper sentence. The government, after a change of position, apparently agrees with that result in this case.

The judgment of sentence will be affirmed.


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