USCA1 Opinion

February 15, 1994

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1888
JAIME TORO-ARISTIZABAL,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Selya and Cyr, Circuit Judges.
______________
____________________
Jaime Toro-Aristizabal on brief pro se.

______________________
A. John Pappalardo, United States Attorney, and Stephen
____________________
________
Heymann, Assistant United States Attorney, on brief for appellee.
_______
____________________
____________________

Per Curiam.
__________
charged,

in

possess

with

quantity of
violation
intent

a multi-count
intent

cocaine between August

of 21

U.S.C.

violation of
separate

distribute

846

of

conspiracy to

distribution

1986 and March

of a

1988, in

1), possession

with

through 14) during

with

in August

841(a)(1) (count
possession

July 1987.

after

with

and

(count

21 U.S.C.

cocaine (counts 4

violations

Toro-Aristizabal was

distribution of cocaine

incidents

November 1986 through

these

indictment,

to distribute

to distribute and

1986, in
eleven

Appellant Jaime

3) and

intent

to

the period

He was convicted of all of

jury trial.

We

affirmed

his

conviction on direct appeal.

See United States v. David, 940

___ _____________
_____

F.2d

cert. denied,
____________

722, 739

(1st

Cir.),

112

S. Ct.

605

appellant

raises

his

(1991).
In

this

2255

motion,

inability to pay the $20,000 fine

conviction.

He

also,

district court, alluded

court

in

he received on the count 3

other

to the

pleadings

filed

following issues:

in

the

(1)

the

should not have considered, in determining appellant's

sentence under the sentencing

cocaine

guidelines, any quantities

of

involved in transactions which occurred prior to the

effective

date of the

incorrectly sentenced
included
U.S.C.

construing

a term
846

guidelines; (2) the

him to

of supervised
and

contrary

ambiguous

a term

of imprisonment

release in
to the

statutes;

sentencing court

policy

and

(3)

violation
of

he

which
of 21

lenity

in

received

ineffective assistance of counsel.

Subsequently,

an

attorney

was

appointed

to

represent appellant.

He filed a new memorandum in which only

the issue concerning the fine was raised.

then

denied the

reviewed

petition.

This

the parties' briefs

judgment of

the district

essentially

the

the factors listed

appeal ensued.

and the record

court as to

reasons stated

dated July 26, 1993.

The district court

We

and affirm the

the $20,000

in the

have

fine for

court's memorandum,

We only add that the fine comports with

in 18 U.S.C.

3622(a),

which applied to

the count 3 conviction.

As
have

for appellant's

received a

first note
and 4 to

14.

On Count
this

release

conspiracies.
of

846.

of parole

that this argument

imprisonment;
supervised

term

assertion that

or supervised

should not
release, we

is relevant only to

1, he was

sentence

he

did

or parole.

sentenced to
not
___

include

Second,

846

counts 3
a term

of

term

of

applies to

The remaining counts did not charge violations

In

any event,

the sentences

imposed on

these

counts were not illegal.

Under count

3 --

the August

possession and distribution -- the

to 15

years imprisonment.

In

1986 conviction

for

court sentenced appellant

August 1986,

841(b)(1)(B)

provided that "[a]ny sentence imposing a term of imprisonment

-3-

under this paragraph shall . . . impose a special parole term

of at least 3
. . .

."

years in addition to such term of imprisonment

Thus, the

special parole portion of

the sentence

under count 3 is correct.

The court
eleven

counts

to

sentenced
concurrent

appellant
terms

on

of

the

remaining

imprisonment

of

seventeen years and six months and concurrent five-year terms

of

supervised

November

release.

13, 1986

Anti-Drug Abuse

to July 15,

Act of

replaced "special

Act of

(1991), the

Section 1002

with a

of the

October 27,
"term of

supervised

Supreme

deferred the

of special

Gozlon-Peretz v.
_____________
Court

1986,

of 21

In the Sentencing Reform

Congress had

the elimination
In

the period

offenses committed in violation

1984, however,

1987.

covered

1987.

841(b)(1)(A), (B) and (C).

date for

395

counts

1986, enacted on

parole term"

release" for narcotic

U.S.C.

These

effective

parole to November
United States,
_____________

held

that

the

1,

498 U.S.
supervised

release provisions of the ADAA applied for the interim period

October 27,
the

dates

appellant

1986 to November 1, 1987.

of counts

was correctly

to 14

fall

sentenced

in
to

Id. at 410.
___

Because

this time

period,

terms of

supervised

release.
Because appellant's sentences were legal, his claim
of ineffective assistance of counsel fails.
that the

court

erred in

calculating

As for his claim

his sentence

on

the

predating

the

-4-

conspiracy

count

effective

date

by

conduct

already

rejected this argument in appellant's direct appeal.

See 940
___

2255 motion

the

to

we

F.2d at 740.

of

referring

sentencing guidelines,

Finally, because the grounds presented in the

turned on

legal issues,

we reject

appellant's

claim that he was entitled to an evidentiary hearing.

The judgment of the district court is affirmed.
________

-5-