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UNITED STATES v. SALAZAR

February 13, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
CARLOS SALAZAR, Defendant.


Shadur


The opinion of the court was delivered by: MILTON I. SHADUR

Carlos Salazar ("Salazar") has submitted a motion under 28 U.S.C. § 2255 ("Section 2255") in which he seeks to have this Court correct a portion of the sentence that it imposed on him just over a year ago (on January 28, 1991) in Case No. 89 CR 998. But because this Court has determined that the Sentencing Guideline ("Guideline") provision on which Salazar seeks to rely is in conflict with the controlling provisions of the statute under which he was sentenced, this Court dismisses the motion summarily as permitted under Rule 4(b) of the Rules Governing Proceedings in the United States District Courts under Section 2255 of Title 28, United States Code ("Section 2255 Rules").

 Salazar's motion confirms that he is not questioning the custodial sentence that this Court imposed on him (75 months in the custody of the Attorney General). Instead he attacks what he characterizes as "the illegal and improper length of the supervised release" term of eight years that was pronounced by this Court to follow his release from imprisonment. Salazar attaches to his motion a photocopy of Guideline § 5D1.2, which he characterizes as limiting a supervised release term to a maximum of five years.

 This Court certainly intends no criticism of Salazar for that reading--it accurately reflects the literal language of the Guideline, and it is also true that the Guidelines and their interaction with the applicable statutes are highly complex and require careful and continuous study by the lawyers and judges who deal with them regularly, so that a layman's insistence on a literal reading is more than merely understandable. What Guideline § 5D1.2(a) actually says is this (emphasis has been added to call Salazar's attention to the portion that cannot reasonably be squared with the controlling statutes in narcotics cases such as this one):

 If a defendant is convicted under a statute that requires a term of supervised release, the term shall be at least three years but not more than five years, or the minimum period required by statute, whichever is greater.

 Salazar pleaded guilty to a charge of possession with intent to distribute a quantity of cocaine that was just a few grams under 3 kilograms, in violation of 21 U.S.C. § 841(a)(1). *fn1" Because that offense involved more than 500 grams but less than 5 kilograms of cocaine, the sentence prescribed for its violation (both in terms of custody and then by way of supervised release) is defined in Section 841(b)(1)(B). After it specifies a term of imprisonment of not less than 5 years for such an offense (absent a prior felony conviction in a drug case), *fn2" Section 841(b)(1)(B) goes on to state:

 Any sentence imposed under this subparagraph shall, in the absence of such a prior conviction, include a term of supervised release of at least 4 years in addition to such term of imprisonment and shall, if there was such a prior conviction, include a term of supervised release of at least 8 years in addition to such term of imprisonment. *fn3"

 It is quite true that if read literally to focus only on the minimum supervised release period specified by statute (4 years or 8 years in the just-quoted sentence), Guideline § 5D1.2(a) would permit no more than an 8-year supervised release term for the repeat narcotics offender (as well as permitting no more than 5 years for a first offender such as Salazar). But such a reading would make 8 years both the minimum and the maximum supervised release term for such a repeat narcotics offender, thus wiping out any prospect of judicial compliance with the explicit congressional grant of authority to impose a greater supervised release sentence. That would render entirely meaningless the congressional provision for at least 8 years of supervised release in the repeat offender situation--and of course the Sentencing Commission cannot override the express will of the Congress that gave it life in the first place.

 This Court is aware of two Court of Appeals' decisions that have touched upon somewhat related issues. United States v. Esparsen, 930 F.2d 1461, 1476-77 (10th Cir. 1991) invalidated a 6-year supervised release term that had been imposed by a District Judge under the Section 841(b)(1)(B) provision that requires (as well as authorizes) "at least 4 years" of supervised release. But the court's decision there was based upon its mistaken view that 18 U.S.C. § 3583(b)(1) ("Section 3583(b)(1)") "does not permit supervised release longer than 5 years for this offense" ( id. at 1477). As has been pointed out more recently in United States v. LeMay, No. 91-1604 MN, 952 F.2d 995, 1991 U.S. App. LEXIS 30647, at *5-7 (8th Cir. Dec. 24, 1991) (per curiam), that Esparsen holding had simply missed the existence and effect of the amendment to Section 3583(b) that was enacted contemporaneously with the lengthened supervised release terms permitted in Section 841(b)(1), thus eliminating the conflict that the Esparsen court had mistakenly identified.

 As for LeMay itself, after having decided that the statute expressly permitted the 10-year supervised release term that the district court there had imposed pursuant to a plea agreement, the Court of Appeals for the Eighth Circuit went on to consider LeMay's argument that 10 years of supervised release was an illegal sentence under Guideline § 5D1.2(a). Because LeMay was a first offender, Section 841(b)(1)(A) required the imposition of a supervised release term "of at least 5 years." LeMay's argument as to the claimed illegality of a 10-year term (which by definition constitutes "at least 5 years") was rejected, based on the court's determination that the Guideline provision for supervised release established a range of 3 to 5 years that was subject to the same types of departures as those that apply to the ranges of imprisonment that have been created by the Guidelines.

 With all respect, that strikes this Court as an overly generous treatment of the Guideline in question. As said earlier in this opinion, when Congress has decreed that a sentencing judge has the power to impose a sentence of at least a specified number of years, the Sentencing Commission should not be permitted to arrogate to itself a veto of that congressionally prescribed power by converting the specified number of years into a ceiling as well as a floor (which is the literal effect of Guideline § 5D1.2(a)).

 What that means to this Court is that Guideline § 5D1.2(a) should not be understood in its literal sense (or that if it is so understood, it must be held to be invalid). For the repeat offender, the statutory provision for "a term of supervised release of at least 8 years in addition to such term of imprisonment" must be taken to permit--as it has consistently been viewed, to this Court's knowledge, by sentencing judges *fn4" --a supervised release term for any period up to and including life. And if that is so, the corresponding language for first offenders of "a term of supervised release of at least 4 years in addition to such term of imprisonment" must be read by parity of reasoning in the same manner. *fn5"

 This Court therefore concludes that "it plainly appears from the face of the motion . . . and the prior proceedings in the case that the movant is not entitled to relief in the district court" (Section 2255 Rule 4(b)), and Salazar's motion is dismissed summarily. As provided in Rule 4(b), this ...


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