United States Court of Appeals,
Fifth Circuit.
No. 93-5037.
UNITED STATES of America, Plaintiff-Appellee,
v.
Harold Glenwood SMITH, Sr., Defendant-Appellant.
Sept. 19, 1994.
Appeal from the United States District Court for the Western
District of Louisiana.
Before REYNALDO G. GARZA, DeMOSS and PARKER,1 Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Harold Glenwood Smith, Sr. (Smith) pleaded guilty to drug
conspiracy offenses in violation of 21 U.S.C. § 841(a)(1) and §
846. The conspiracy began in early 1986 and continued through July
23, 1987.
Smith was sentenced on January 27, 1988 to imprisonment for
twenty years to be followed by a "special parole term" of three
years.
After an unsuccessful direct appeal and one previous pro se
petition under 28 U.S.C. § 2255, both of which raised unrelated
issues, Smith is now before this court appealing the district
court's denial of his petition for relief under 28 U.S.C. § 2255,
which challenged the inclusion of a term of special parole in his
sentence. The district court below held that because petitioner's
1
Judge Parker participated by designation in the oral
argument of this case as a United States District Judge for the
Eastern District of Texas. Since that time he has been appointed
as a Fifth Circuit Judge.
1
offense occurred prior to November 1987, even though he pleaded
guilty after that date, the 1984 amendments to § 841 did not apply
to his offense. The district court found the special parole term
was proper and denied petitioner's petition for habeas corpus.
SPECIAL PAROLE
Smith argues that the district court erred in denying his
Application for Writ of Habeas corpus because the sentencing
provisions applicable to the offenses to which Smith pleaded guilty
required the imposition of supervised release terms instead of
special parole terms. He is correct.
Portions of Smith's offenses were committed during an interim
period between the enactment of the Anti-Drug Abuse Act of 1986
(ADAA) and the November 1, 1987 effective date of the Sentencing
Reform Act. The Supreme Court in Gozlon-Peretz v. United States,
498 U.S. 395, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991) held that
congress intended the supervised release provisions of the ADAA to
apply to drug offenses committed after October 26, 1986. Because
Smith was involved in the drug conspiracy during the 1986-87 time
period addressed in Gozlon-Peretz, Smith should have been sentenced
to terms of supervised release instead of special parole. The
government concedes that this was error.
IS THIS ERROR COGNIZABLE UNDER § 2255?
Section 2255 provides recourse only " "for transgressions of
constitutional rights and for that narrow compass of other injury
that could not have been raised on direct appeal and would, if
condoned, result in a complete miscarriage of justice.' " United
2
States v. Perez, 952 F.2d 908, 909 (5th Cir.1992) (quoting United
States v. Capua, 656 F.2d 1033, 1037 (5th Cir.1981)); see United
States v. Prince, 868 F.2d 1379, 1382 (5th Cir.) cert. denied, 493
U.S. 932, 110 S.Ct. 321, 107 L.Ed.2d 312 (1989) (it is well settled
that § 2255 does "not reach alleged errors which are not of
constitutional or jurisdictional magnitude and which could have
been reached by a direct appeal.") Smith's appeal does not rise to
the level of a constitutional claim or jurisdictional magnitude,
although an argument for substantive due process could possibly be
made. However, Smith could not have raised this issue on appeal.
On January 25, 1988, the Fifth Circuit handed down United States v.
Byrd, 837 F.2d 179 (5th Cir.1988), holding that a district court
was not authorized to impose a term of supervised release on a drug
defendant like Smith whose offense was committed prior to November
1, 1987. That was the law in the Fifth Circuit from January 1988
until February 1991, when the Supreme court reversed Byrd in
Gozlon-Peretz. Smith was sentenced two days after Byrd was decided
which settled the issue against him, foreclosing any relief on
appeal.
The remaining question is whether denying Smith's petition
would result in a miscarriage of justice. We hold that it would,
as the defendant is entitled to be sentenced under the correct law.
Therefore we conclude that the district court's error in this
case is cognizable under § 2255.
RELIEF
Finally, we must determine the appropriate relief due Smith
3
in this action. Special parole was "a period of supervision served
upon completion of a prison term" and administered by the United
States Parole Commission. Gozlon-Peretz v. United States, 498 U.S.
395, at 399, 111 S.Ct. 840, at 844, quoting Bifulco v. United
States, 447 U.S. 381, 388, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205
(1980). See 21 U.S.C. § 841(c) (1982 ed.), repealed, Pub.L. 98-
473, Tit. II, § 224(a)(6), 98 Stat. 2030. The Sentencing Reform
Act of 1984 modified the penalty scheme for federal drug offenders
by deleting all references to special parole. The change reflected
Congress' desire to eliminate most forms of parole and to replace
them with the new system of supervised release. Under the
Sentencing Reform Act's provisions for supervised release, the
sentencing court rather than the Parole Commission oversees the
defendant's postconfinement monitoring. See 18 U.S.C. §§ 3583 and
3601. The court can terminate, extend, or alter the conditions of
the term of supervised release prior to its expiration. 18 U.S.C.
§ 3583(e). The question then before this Court is whether the
changes are such that a term of years under one punishment scheme
is equivalent to the same term under the other scheme. The major
distinction between the old and new law is that the district court
rather than the probation office, is responsible for monitoring the
defendant after he is released and has increased flexibility for
tailoring the sentence to the needs of the individual. Otherwise,
the two sentences are essentially identical.
We would be wasting judicial resources if we were to vacate
Smith's sentence and remand his case for what would undoubtedly be
4
the substitution of a three year term of supervised release for the
three year term of special parole. The appropriate remedy in this
case is to render an order modifying the sentence. See, United
States v. Mills, 9 F.3d 1132 (5th Cir.1993)
CONCLUSION
We REVERSE the District Court's order denying Smith's Motion,
RENDER an order granting the motion and MODIFY Smith's sentence by
substituting a three year term of supervised release for the three
year term of special parole.
5