The opinion of the court was delivered by: McLAUGHLIN, District Judge.
Petitioner, pro se, seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2255 to vacate an illegal sentence. For the reasons
discussed below, the motion is granted in part and denied in
On September 30, 1987 petitioner pled guilty to a one-count
superseding criminal information charging him with importing
more than one hundred grams of heroin. 21 U.S.C. § 952(a),
960(b)(2)(A). On November 10, 1987, petitioner was sentenced to
a five-year term of imprisonment, to be followed by four years
Petitioner now moves to vacate his sentence, arguing that (1)
the statutory penalty section, 960(b)(2)(A) of the Anti-Drug
Abuse Act of 1986 (the "Act"), is unconstitutionally vague; and
(2) because his criminal conduct predates the effective date of
the 1986 Act, the sentence imposed under the Act's penalty
provisions violates the ex post facto clause of the
Petitioner first claims that § 960(b)(2)(A) is
unconstitutionally vague, permitting a court to impose three
possible alternatives in sentencing: (1) a minimum five-year
term of imprisonment, or (2) a fine in lieu of imprisonment, or
(3) both.*fn1 In United States v. Musser, 856 F.2d 1484 (11th
Cir.), cert. denied, ___ U.S. ___, 109
S.Ct. 1145, 103 L.Ed.2d 205 (1989), the Eleventh Circuit
confronted the very same vagueness issue and concluded that the
purpose of the penalty provisions was still evident even though
the statutory language may lack a sense of precision.
Consequently, "[c]ontruing the subsection as a whole, it is
clear that a mandatory term of imprisonment is required."
Id. at 1486.*fn2
Petitioner's second claim to set aside his sentence as
illegal concerns the effective date of the Act. Petitioner
argues that the enhanced penalty provisions of the Act did not
become effective until November 1, 1987. Because, according to
the argument, the criminal conduct in this case ended prior to
that date, applying the Act's penalties would present a fatal
ex post facto problem. Petitioner's argument on this point,
however, is largely misdirected.
The Act became effective upon signature by the President on
October 27, 1986. See 21 U.S.C. § 960; Beltre v. United States,
715 F. Supp. 606, 608 (S.D.N.Y. 1989). A sentence imposed
pursuant to a law in effect at the time of the offense does not
violate the ex post facto prohibition of the Constitution. Cf.
Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17
Petitioner derives his argument from a different facet of the
Act. In contemplation of the federal sentencing guidelines
— which became effective November 1, 1987 — the Act
explicitly delayed the effective date of "supervised release"
to commence with the guidelines. Courts construing this
statutory issue have held that the delay to November 1, 1987
does not apply to other provisions of the Act, concluding "that
the provisions in sections . . . 1302 (21 U.S.C. § 960(b))
calling for mandatory minimum sentences without the possibility
of parole became effective on October 27, 1986." United States
v. Toribio, 727 F. Supp. 780, 783 (D.Puerto Rico 1989); Beltre,
supra, 715 F. Supp. at 608 ("[T]he enhanced penalty provisions
of the 1986 Act became effective immediately on October 27,
1986."). See United States v. Levario, 877 F.2d 1483, 1487
(10th Cir. 1989); United States v. Padilla, 869 F.2d 372,
381-382 (8th Cir.), cert. denied, ___ U.S. ___, 109 S.Ct. 3223,
106 L.Ed.2d 572 (1989); United States v. Arrieta,
855 F.2d 804, 805 (11th Cir. 1988).
Accordingly, the five-year prison term imposed in this case
pursuant to the 1986 Act is wholly proper. That leaves open,
however, the issue of four years supervised release presently
scheduled to follow petitioner's incarceration. As already
discussed, because enabling legislation for the 1986 Act
specifically made the replacement of "special parole" with
"supervised release" contingent upon the effective date of the
federal sentencing guidelines, courts cannot impose supervised
release for offenses committed prior to November 1, 1987. It is
equally clear, however, that courts look to the applicable
statutes as they existed before the October 1986 reforms. If
special parole terms were available under the old law, then
such terms also apply to crimes committed between October 27,
1986 and November 1, 1987. Beltre, 715 F. Supp. at 609; see
United States v. Smith, 840 F.2d 886, 890 n. 3 (11th Cir.),
cert. denied, ___ U.S. ___, 109 S.Ct. 154, 102 L.Ed.2d 125
(1988); United States v. Byrd, 837 F.2d 179 (5th Cir. 1988).
In this case petitioner was convicted of importing heroin.
The appropriate predecessor penalty section was
21 U.S.C. § 960(b)(1). Because that section carries a mandatory special
parole term of at least three ...