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UNITED STATES v. WALLENDORF

May 9, 1990

UNITED STATES OF AMERICA, Plaintiff,
v.
KENNETH WALLENDORF, Defendant


Milton J. Shadur, United States District Judge.


The opinion of the court was delivered by: SHADUR

MILTON J. SHADUR, UNITED STATES DISTRICT JUDGE.

 Kenneth Wallendorf ("Wallendorf") has just transmitted two letters to this Court seeking relief from the sentence previously imposed on him (attached Ex. 1, a letter dated April 21, 1990 and received April 25, and Ex. 2, a letter dated May 2 and received May 7). Because Fed. R. Crim. P. ("Rule") 35(b) is not applicable in this situation, *fn1" both transmittals will be treated as motions for relief under 28 U.S.C. § 2255 ("Section 2255" *fn2" ).

 In Ex. 1 Wallendorf moves to vacate or set aside the three-year supervised release term imposed by this Court to follow the custodial portion of the three-year sentence that Wallendorf is now serving in the custody of the Attorney General. Wallendorf seeks that relief because the only charge to which he pleaded guilty was one of conspiracy under 21 U.S.C. § 846 ("Section 846").

 By way of background in that respect, on July 5, 1988 Wallendorf and his counsel entered into a plea agreement with the government under Rule 11(e)(1)(C), calling for (1) a specified term of three years in custody (a downward departure under the sentencing guidelines because of Wallendorf's cooperation) to be followed by (2) a four-year supervised release term (Ex. 3 para. 14). At the time of sentencing on July 29, 1988 this Court accepted the plea agreement and imposed precisely that sentence. But less than a month later this Court sua sponte entered an August 17, 1988 order (Ex. 4) reducing the supervised release term from four years to three years, because three years then represented the maximum period of supervised release that could have been imposed pursuant to 18 U.S.C. § 3583(a) ("Section 3583(a)") and 3583(b)(1) ("Section 3583(b)").

 To return to the substance of Wallendorf's motion, he has made a quite understandable mistake in his now-stated belief that supervised release was not a proper component of a sentence for violation of the Section 846 conspiracy statute. Bifulco v. United States, 447 U.S. 381, 65 L. Ed. 2d 205, 100 S. Ct. 2247 (1980) held that no "special parole term" (the statutory predecessor to supervised release) could be imposed under Section 846, even though such a sentence component was entirely appropriate for violation of the substantive offense defined in 21 U.S.C. § 841(a) ("Section 841(a)"). And as our Court of Appeals has just said in United States v. McNeese, 901 F.2d 585, 602, 1990 U.S. App. LEXIS 7055 (7th Cir. 1990) (footnote and citation omitted):

 
Thereafter, courts routinely vacated terms of special parole and mandatory minimum penalties from the sentences of defendants convicted specifically on a § 846 conspiracy count.

 Indeed, McNeese, id. at 602 n. 8 also gives examples of cases that for the same reason have vacated supervised release terms erroneously imposed for Section 846 violations.

 To see the error in Wallendorf's understanding, it is necessary to give careful consideration to the relevant statutes here in terms of the specific dates involved. In the Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, Title VI, § 6470(a), 102 Stat. 4181, 4312, 4377 (1988) Congress amended Section 846 (making explicit reference to Bifulco) so as to make the mandatory minimum sentences and special parole terms under Section 841(a) applicable under Section 846 as well (see McNeese, 901 F.2d at 602 n.6, 603). That amendment could not of course apply to Wallendorf's offense committed in November 1987 (because of obvious ex post facto implications). But before enacting that amendment to Section 846, Congress had already amended Section 3583(a) -- effective as to all offenses committed after November 1, 1987 -- to permit the inclusion of a term of supervised release after imprisonment as to every felony or misdemeanor. By definition that included Section 846 conspiracy charges, in the same way that it included any other criminal offense.

 This Court's search of the relevant authority discloses only one case treating with this specific problem: United States v. Guilmartin, 727 F. Supp. 134 (S.D.N.Y. 1989). *fn3" Chief Judge Brieant's opinion in that case reaches the identical result expressed here on precisely the same reasoning, and that opinion should be referred to for a more expansive discussion of what this Court has just set out in abbreviated form. Accordingly the first element of Wallendorf's motion must be and is denied, for the supervised release portion of his sentence was properly imposed under the law that applied to his offense at the time he committed it.

 As for Wallendorf's second motion (Ex. 2), it stems from another misunderstanding on his part -- a somewhat different one -- as to the terms of his sentence. Because that sentence was imposed under the new sentencing regime established by the sentencing guidelines and the revised underlying statutory structure, there is no provision for parole applicable to Wallendorf's sentence. It is for the Bureau of Prisons and not for this Court to determine the length of time that Wallendorf must actually spend in custody under the agreed-upon three-year sentence specified in his plea agreement, implemented by this Court's sentence approving that plea agreement. Accordingly this Court may not provide any relief on the second branch of Wallendorf's current request.

 Conclusion

 Wallendorf has demonstrated a degree of misunderstanding that is hardly surprising, given the sequence of statutory changes and the different effective dates that must be looked at. What is clear is that this Court is not in a position to afford Wallendorf relief in either respect he now seeks, and both his current motions are denied.

 EXHIBIT 1

 87CR939-4

 4-21-90

 Dear Judge Shadur,

 Would you please except this letter as a motion to vacate or set aside my three years supervised release.

 My case number is 87 CR 939 - 4. I pleaded guilty to count one of the the indictment; title 21 USC 846 conspiracy. There is nothing under the conspiracy laws that allows for supervised release after a term of imprisonment.

 Sincerely,

 Kenneth Wallendorf

 87 CR 939 - 4

 5-2-90

 Dear Judge ...


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