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127 F3d 1108 United States v. Vargas-Gonzalez

127 F.3d 1108

UNITED STATES of America, Plaintiff-Appellee,
v.
Alfredo VARGAS-GONZALEZ, Defendant-Appellant.

Nos. 96-56467, 96-56557.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 20, 1997.**
Decided Oct. 24, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Appeal from the United States District Court for the Central District of California Lourdes G. Baird, District Judge, Presiding

Before THOMPSON, T.G. NELSON, and KLEINFELD, Circuit Judges.

1

MEMORANDUM*

2

Former federal prisoner Alfredo Vargas-Gonzales appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate a special parole term imposed as part of his sentence for his narcotics convictions. Vargas-Gonzalez contends that 21 U.S.C. § 841(c), which governs the special parole term, is unconstitutional as a violation of the separation of powers doctrine.

3

Specifically, Vargas-Gonzalez contends that section 841(c) allows the Parole Commission to "increase" a sentence with a special parole term, and this is a judicial function which cannot be delegated to a non-judicial tribunal such as the Parole Commission. In a similar case raising a separation of powers challenge, we held, however, that "the special parole term provision of 21 U.S.C. § 841 offends no constitutional guarantee." United States v. Arellanes, 767 F.2d 1353, 1358-59 (9th Cir.1985) (defendant argued the special parole provision was unconstitutional because it unlawfully delegated the legislative power to establish penalties to the judicial branch). Accordingly, we affirm the district court's denial of the section 2255 motion.

4

AFFIRMED.

**

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3