625 F2d 1383 United States v. Ulano

625 F.2d 1383

UNITED STATES of America, Plaintiff-Appellee,
v.
Bernard ULANO, Defendant-Appellant.

No. 79-1495.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Feb. 5, 1980.
Decided Aug. 26, 1980.

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1

Before CHAMBERS and TRASK, Circuit Judges, and KING,* District Judge.

2

ORDER RECALLING MANDATE, GRANTING PETITION FOR REHEARING AND REMANDING

3

In our opinion in this case, United States v. Ulano, 9 Cir., 614 F.2d 1257 (1980), we reserved decision on Ulano's argument that the special parole term portion of his sentence, for violation of 21 U.S.C. § 846, was unlawful, noting that the issue was pending before the Supreme Court. The Supreme Court in Bifulco v. United States, --- U.S. ----, 100 S.Ct. 2247, 65 L.Ed.2d ---- (1980), has held that a special parole term is not authorized for violation of this statute, and is subject to attack under 28 U.S.C. § 2255.

4

The motion of Ulano1 for recall of the mandate is granted. The petition for rehearing is granted. The case is remanded to the district court2 with directions that the special parole term of Ulano's sentence be vacated. In all other respects, our opinion filed March 10, 1980, remains unchanged.

*

The Honorable Samuel P. King, United States District Judge for the District of Hawaii, sitting by designation

1

Appellant's substitution of attorneys is approved

2

District Judge Leo Brewster of the Northern District of Texas, sitting by designation, to whom the case had been assigned, died on November 27, 1979, and it appears that District Judge Manuel L. Real of the Central District of California is now handling the case