598 F. 2d 471 - Cantu v. United States

In June 1972, Fernando Medina Cantu was convicted of conspiracy to possess with intent to distribute and of conspiring to distribute marihuana and was sentenced to five years in prison to be followed by a special parole term of three years. This court affirmed his conviction on direct appeal. United States v. Cantu, 469 F.2d 679 (5th Cir. 1972), Cert. denied, 411 U.S. 908, 93 S.Ct. 1536, 36 L.Ed.2d 197 (1973). In September, 1978, Cantu filed a motion to vacate his sentence under 28 U.S.C. § 2255, asserting first, that the trial court erred in admitting a co-conspirator's out-of-court declarations without following the procedures established in United States v. James, 590 F.2d 575 (5th Cir. 1979) (en banc) and, second, that the statute under which he was sentenced, 21 U.S.C. § 846, does not permit the imposition of a special parole term. The district court denied relief. We affirm.

In James, we held that the procedures adopted for determining the admissibility of a co-conspirator's out-of-court declarations were prospective. 590 F.2d at 583. Since Cantu's trial occurred prior to the decision in James, the district court did not err in failing to anticipate the result in James.

This court has never specifically addressed the question whether 21 U.S.C. § 846 allows the sentencing judge to impose a special parole term as a part of a defendant's sentence. We have, however, upheld the imposition of a special parole term under a statute with language very similar to that in § 846, 21 U.S.C. § 963, which forbids conspiracies to import controlled substances. United States v. Dankert, 507 F.2d 190 (5th Cir. 1975). § 963 provides that the crime of conspiring to import controlled substances "is punishable by imprisonment or fine or both (not to) exceed the maximum punishment prescribed for the offense, the commission of which was the object of the conspiracy." The Dankert court found that § 963 permitted the imposition of a special parole term since the punishment for substantive offense of importing controlled substances included a special parole term. 21 U.S.C. § 960(b)(1).

Like the statute at issue in Dankert, § 863 also provides that the maximum punishment for conspiracy is the same as that established for the substantive offense. The statute prohibiting the substantive offense of possessing with the intent to distribute a controlled substance and of distribution of a controlled substance permits the imposition of a special parole term. 21 U.S.C. § 841. Thus, under the logic of Dankert, the sentencing judge here did not err in imposing the special parole term. See United States v. Burman, 584 F.2d 1354, 1357-58 (4th Cir. 1978); United States v. Jacobson, 578 F.2d 863, 867-68 (10th Cir. 1978), cert. denied, 439 U.S. 932, 99 S.Ct. 324, 58 L.Ed.2d 327 (1979).

AFFIRMED.