United States v. Martinez ( 1994 )


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  •                 IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    _______________
    No. 93-7372
    _______________
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    VERSUS
    JOSE LUIS MARTINEZ
    Defendant-Appellant.
    _________________________
    Appeal from the United States District Court
    for the Southern District of Texas
    _________________________
    (April 8, 1994)
    Before SMITH and BARKSDALE, Circuit Judges, and WALTER,* District
    Judge.
    JERRY E. SMITH, Circuit Judge:
    Jose Martinez appeals the district court's denial of his
    motion to change the post-imprisonment portion of his sentence from
    a special parole term to supervised release.          Finding no error, we
    affirm.
    I.
    *
    District Judge of the Western District of Louisiana, sitting by
    designation.
    Martinez pleaded guilty in April 1988 to possession with
    intent to distribute approximately fifteen kilograms of marihuana,
    in violation of 
    21 U.S.C. § 841
    (a)(1) and (b)(1)(D).       He received
    a sentence of four years' confinement, a four-year special parole
    term, and a special assessment of $50.
    In   February   1993,   following   his   release   from   prison,
    Martinez's supervising probation officer issued a probable cause
    warrant for Martinez's arrest based upon a belief that Martinez had
    violated his parole.    Martinez surrendered and was imprisoned in
    March 1993 for violating parole.
    Martinez moved to correct his sentence, arguing that he should
    have received a term of supervised release under § 1002 of the
    Anti-Drug Abuse Act of 1986 ("ADAA"), and Gozlon-Peretz v. United
    States, 
    498 U.S. 395
     (1991).    The district court denied the motion
    as the statute under which Martinez was convicted, 
    21 U.S.C. § 841
    (b)(1)(D), was not governed by § 1002.
    II.
    Martinez argues that, under the reasoning of Gozlon-Peretz,
    § 1002 designates offenses under 
    21 U.S.C. § 841
    (b)(1)(D) as having
    supervised release. We review the motion to correct sentence under
    FED. R. CRIM. P. 35 for gross abuse of discretion.   United States v.
    Hanyard, 
    762 F.2d 1226
    , 1228 (5th Cir. 1985).
    The issue in this case is not the effective date of § 1002,
    see Gozlon-Peretz, 
    498 U.S. at 409
    , but whether the offense in this
    case was designated as an offense requiring supervised release
    2
    under § 1002.         We conclude that it was not.          Section 1002
    redesignated     §   841(b)(1)(C)   as   §   841(b)(1)(D)   and   amended
    § 841(b)(1)(A), (b)(1)(B), and (b)(1)(C) to reflect terms of
    supervised release instead of special parole.        The special parole
    term in § 841(b)(1)(D) remained unaffected until November 1, 1987,
    when it was amended by § 1004 of the ADAA.      Gozlon-Peretz, 
    498 U.S. at
    406 n.10.   Since Martinez's offense occurred in March 1987, the
    district court correctly denied his motion to replace his special
    parole term with a term of supervised release.
    AFFIRMED.
    3
    

Document Info

Docket Number: 93-07372

Filed Date: 4/7/1994

Precedential Status: Precedential

Modified Date: 12/21/2014