907 F. 2d 155 - United States v. McCahill

No. 88-5967.

United States Court of Appeals, Ninth Circuit.

Before JAMES R. BROWNING and PREGERSON, Circuit Judges, and COPPLE, District Judge**.

MEMORANDUM***

Defendant was convicted, pursuant to a guilty plea, of aiding and abetting the possession, with intent to distribute, over one kilogram of cocaine in violation of 21 U.S.C. Section 841(a)(1). The version of Section 841(a)(1) in effect at the time Defendant engaged in the criminal activity provided for a special parole term following imprisonment. However, just prior to sentencing, the statute was amended, omitting the special parole term. The District Court sentenced defendant pursuant to the statute in effect at the time the crime was committed to a fifteen year term of imprisonment and a special parole term of thirty-five years.

While the amendments to the statute do not specify whether they should apply to existing prosecutions, the law is well-settled that amendments which act to repeal part of an existing statute have no effect to extinguish any penalty or liability already incurred. 1 U.S.C. Section 109; Bradley v. U.S., 410 U.S. 605 (1973) (holding that the prosecution is unaffected through the completion of sentencing so that defendant may not benefit from amendments which become effective between the commission of a crime and the time of sentencing); Davis v. Bryan, 889 F.2d 445 (2nd Cir.1989) (applying a sentencing statute in effect at the time the crime was committed, refusing to apply a statute adopted in the period between conviction and a remand for resentencing); U.S. v. Haines, 855 F.2d 199 (5th Cir.1988) (refusing to use sentencing guidelines which came into effect after the criminal offenses were committed).

The District Court appropriately applied the sentencing statute in effect at the time the crime was committed rather than amendments which took effect several months after the crime was committed but prior to sentencing. Accordingly, we affirm.