The opinion of the court was delivered by: NEAHER
Defendant, a Federal prisoner convicted in this Court, has filed a motion to correct a claimed illegal sentence as provided by Rule 35(a), Fed. R. Crim. P. His previous motion seeking a reduction of sentence was denied on September 2, 1983.
The ground of the present motion is that defendant's seven-year sentence and five-year special parole term constitutes cruel and unusual punishment violative of the Eighth Amendment. In support of that contention, defendant relies on a recent decision of Judge Wyzanski (sitting in the Northern District of California) holding that the mandatory special parole term provided for in 21 U.S.C. § 841(b)(1)(A)
"is either meaningless or, if meaningful, unconstitutional (a) for failure to state a fixed period of imprisonment for violation of the special parole, or, alternatively, (b) for failure to give any judge at any time specific authority to determine, within statutorily defined limits, the period of imprisonment for violation of the special parole."
United States v. Tebha, 578 F. Supp. 1398, 1400 (N.D. Calif. 1984) (emphasis in original).
Contrary to defendant's contention, this Court finds that Congress made specific provision for further punishment in the event of violation of a special parole term. Section 841(c) clearly provides that if a special parole term imposed under § 841 is violated, it may be revoked and the defendant's term of imprisonment increased "by the period of the special parole term and the resulting term of imprisonment shall not be diminished by the time which was spent on parole." (Emphasis by the Court.) Thus it is clear contrary to the holding in Tebha, that Congress did provide a specific sanction for violation of a special parole term.
Accordingly, defendant's motion is in all respects denied.
Copies of this Memorandum Order are being forwarded to the United States Attorney for this District; to the Chief Probation Officer for this District; and to defendant, Mr. Charles Davi, #20978-053, Federal Correctional Institution, P.O. Box 2000-Renaissance Unit, Lexington, Kentucky 40512.
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