47 F. 3d 1178 - United States of America v. H Saahir

After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed.R.App.P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Defendant appeals the district court's partial denial of his motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. 2255. Defendant contends the district court should have imposed concurrent rather than consecutive terms of supervised release and sentenced him fully under the Sentencing Guidelines. We review defendant's challenges to the legality of his sentence de novo, United States v. Gonzalez-Lerma, 14 F.3d 1479, 1484 (10th Cir.), cert. denied, 114 S.Ct. 1862 (1994), and conclude defendant should have been sentenced to concurrent terms of supervised release, but should not have been sentenced under the Guidelines.

On December 20, 1988, defendant was convicted of one count of conspiracy to import marijuana in violation of 21 U.S.C. 963 and two counts of importing marijuana in violation of 21 U.S.C. 952, 960. He was sentenced to two consecutive three-year terms of imprisonment and two consecutive two-year terms of special parole on the importation counts and a concurrent five-year term of imprisonment on the conspiracy count. This court affirmed the conviction, United States v. Saahir, No. 89-1018 (10th Cir. Mar. 1, 1990), and the Supreme Court denied certiorari, Saahir v. United States, 497 U.S. 1030 (1990).

Defendant sought to have his special parole term vacated pursuant to Fed.R.Crim.P. 35(a). The district court denied the motion; this court affirmed, United States v. Saahir, No. 90-1131 (10th Cir. Nov. 14, 1990); and the Supreme Court denied certiorari, Saahir v. United States, 500 U.S. 920 (1991).

Thereafter, defendant moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255. After appointing advisory counsel for defendant and holding a hearing, the district court granted 2255 relief in part, vacated the four-year special parole term, resentenced defendant to four years of supervised release, see Gozlon-Peretz v. United States, 498 U.S. 395 (1991), and ordered the supervised release to run concurrently to his mandatory release supervision by the United States Parole Commission. The court stated that the four-year term of supervised release could be reduced to two years if after one year defendant was in compliance with the conditions of supervision. Defendant appealed.

During the pendency of this appeal, and one year after resentencing, the district court determined that plaintiff had complied with the conditions of supervision. The district court reduced the four-year term of supervised release to two years.

On appeal, defendant first argues that the district court imposed an illegal sentence and failed to comply with 18 U.S.C. 3624(e) by imposing consecutive rather than concurrent terms of supervised release. Section 3624(e) provides that supervised release "runs concurrently" with any other term of supervised release "to which the person is subject or becomes subject during the term of supervised release."

Only the Eighth Circuit has directly addressed whether consecutive sentences are permitted.2 In United States v. Gullickson, 982 F.2d 1231 (8th Cir.1993), the court held that 3624(e) unambiguously requires concurrent supervised release on multiple convictions. Id. at 1236; see also United States v. Ravoy, 994 F.2d 1332, 1337 (8th Cir.1993)(supervised release terms run concurrently). Although recognizing that courts have imposed consecutive terms of supervised release without discussion of the issue, Gullickson, 982 F.2d at 1236 n. 1, the court nonetheless concluded that consecutive terms of supervised release are impermissible, id. at 1235-36.3

Construing the statutory language according to its plain, ordinary meaning, United States v. Wilson, 10 F.3d 734, 736 (10th Cir.1993), cert. denied, 114 S.Ct. 1621, 114 S.Ct. 2750 (1994), we agree with the Eighth Circuit and conclude the district court erred in granting consecutive terms of supervised release.

The district court's recent reduction of supervised release from four to two years has no effect on our holding that the terms of supervised release must run concurrently. Although the district court properly modified the length of defendant's supervised release, see 18 U.S.C. 3583(e)(2); Gozlon-Peretz, 498 U.S. at 401; United States v. Spinelle, 41 F.3d 1056, 1058-61 (6th Cir.1994); Rodriguera v. United States, 954 F.2d 1465, 1469 (9th Cir.1992); United States v. Behnezhad, 907 F.2d 896, 898 (9th Cir.1990), the district court imposed two consecutive one-year terms of supervised release. This is impermissible under 3624(e). Accordingly, we vacate the illegal consecutive terms of supervised release and remand for resentencing.

Defendant also argues on appeal that his sentence is illegal because he should have been sentenced under the provisions of the Sentencing Guidelines. Defendant believes that since he was sentenced to supervised release pursuant to the Sentencing Reform Act, see Gozlon-Peretz, 498 U.S. at 400, he should have been fully sentenced under the Guidelines. We disagree. Although the Sentencing Reform Act of 1984 was effective on November 1, 1987, the supervised release provisions of the Anti-Drug Abuse Act of 1986 applied to persons convicted of specified drug offenses committed between October 27, 1986 and November 1, 1987. Id. at 397, 409. Defendant admits committing the offenses during this interim period. Accordingly, the district court correctly sentenced defendant to supervised release, but not to all provisions of the Sentencing Guidelines. See 1 U.S.C. 109 (apply law in effect at time of offense). Also, contrary to defendant's conclusory argument, the different effective dates do not cause his sentence to be cruel and unusual punishment or a violation of due process. See also United States v. Pena, 920 F.2d 1509, 1517 (10th Cir.1990)(sentence within statutory limits generally will not be cruel and unusual), cert. denied, 501 U.S. 1207 (1991).

The judgment of the United States District Court for the District of Colorado is AFFIRMED as to the pre-Guidelines sentencing and REVERSED as to the imposition of consecutive terms of supervised release. The action is REMANDED for resentencing consistent with 3624(e) and this order and judgment.