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652 F2d 452 United States v. Gomez-Geraldo

652 F.2d 452

UNITED STATES of America, Plaintiff-Appellee,
v.
Aldolfo GOMEZ-GERALDO a/k/a Adolfo Ramirez a/k/a Adolfo
Gomez, Defendant-Appellant.

No. 80-5879

Summary Calendar.

United States Court of Appeals,
Fifth Circuit.

Unit B

Aug. 3, 1981.

Paul W. Sloniowki, Atlanta, Ga., for defendant-appellant.

William C. Bryson, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before RONEY, FRANK M. JOHNSON, Jr. and HENDERSON, Circuit Judges.

PER CURIAM:

1

Contrary to defendant's argument, a ten-year sentence on a single count charging conspiracy to import both cocaine and marijuana is not a general sentence in violation of Benson v. United States, 332 F.2d 288 (5th Cir. 1964). Nor is it an illegal sentence because it exceeds the five-year sentence permitted by 21 U.S.C.A. § 960(b)(2) when only marijuana is involved. The jury by special verdict found that both cocaine and marijuana were the objects of the conspiracy. Fifteen years is the maximum sentence for a cocaine offense. 21 U.S.C.A. § 960(b)(1). The same is true for defendant's ten-year sentence on a single count charging importation of both cocaine and marijuana. The district court's denial of a Rule 35, Fed.R.Crim.P., motion is affirmed.

2

The special parole term of three years added to the ten-year sentence for conspiracy conviction was imposed improperly under Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980), and is hereby vacated. United States v. Ayala, 643 F.2d 244, 248 (5th Cir. 1981).

3

AFFIRMED IN PART; VACATED IN PART.