928 F. 2d 1138 - United States v. Kendrick
928 F2d 1138 United States v. Kendrick
928 F.2d 1138
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Charles KENDRICK, aka Charles Earl Kendrick, aka Ernest
Davis, Defendant-Appellant.
No. 90-50072.
United States Court of Appeals, Ninth Circuit.
Submitted Nov. 21, 1990.*
Decided March 19, 1991.
Appeal from the United States District Court for the Southern District of California, No. CR-77-0226-T; Howard B. Turrentine, District Judge, Presiding.
S.D.Cal.
AFFIRMED.
Before HUG, WILLIAM A. NORRIS and NOONAN, Circuit Judges.
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MEMORANDUM**
Pro se defendant-appellant Charles Kendrick appeals from the denial of his Fed.R.Crim.P. 35 motion to correct sentence. Kendrick was convicted on March 13, 1978 of conspiracy to illegally import a controlled substance, illegal importation of a controlled substance, conspiracy to possess a controlled substance and possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. Secs. 963, 952, 960, 846 and 841(a). Kendrick was sentenced to five years incarceration and fifteen years of special probation. The district court found that special parole was required in Kendrick's case. We affirm.
Kendrick asserts that the imposition of a special parole term was improper under United States v. Bifulco, 447 U.S. 381 (1980), which dealt with the Comprehensive Drug Abuse Prevention and Control Act of 1970 (Act). Bifulco held that special parole terms were inappropriate in conspiracy cases under 21 U.S.C. Sec. 846 because section 846 did not mandate special parole for conspiracy violations. Id. at 400-401.
The Bifulco holding has been expanded to include other conspiracy violations of the Act. See, e.g., United States v. Bourdon, 624 F.2d 77, 78 (9th Cir.1980) (holding that Bifulco extended to conspiracy violations under 21 U.S.C. Sec. 963). Kendrick argues that Bifulco should extend to his violations under 21 U.S.C. Secs. 841(a)(1) and 960.
We find Kendrick's argument unpersuasive. Bifulco and its progeny deal solely with defendants convicted of conspiracy violations. Bifulco does not apply to substantive violations because Congress authorized special parole for some substantive offenses. Moroever, at the time of Kendrick's trial, special parole was mandated for both sections 841 and 960. In fact, the district court had no discretion not to impose a special parole term. If it had chosen not to impose one, the sentence would have been invalid. See United States v. Connolly, 618 F.2d 553, 555-56 (9th Cir.1980). The district court was correct in imposing a special parole term.
AFFIRMED.