United States v. Smith

                   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