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March 27, 1992


The opinion of the court was delivered by: I. LEO GLASSER


 GLASSER, United States District Judge:

 Petitioner Margiotta alleges that this court committed error in sentencing him to a 5-year term of supervised release to follow his incarceration. For the reasons set forth below, Margiotta's section 2255 petition to vacate his sentence is denied.

 On November 3, 1988, Margiotta pled guilty to a violation of 21 U.S.C. § 846, conspiracy to distribute and possess with intent to distribute both heroin and cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). On January 19, 1989, he was sentenced to a prison term of 84 months, a 5-year term of supervised release, and a special assessment of fifty dollars.

 The facts surrounding Margiotta's offense are as follows. The investigation into his narcotics trafficking began in January 1988, when a confidential source provided information on Margiotta's activities. In the period from March through June 1988, Margiotta met with informants and undercover agents on several occasions to discuss a possible 8-kilogram heroin purchase. On July 26, Margiotta began separate negotiations with one of the confidential informants for the sale of cocaine; according to the informant, Margiotta represented that he could supply between 10 and 50 kilograms. On August 30, Margiotta telephoned the informant and arranged to provide 5 kilograms of cocaine the following day. On September 1, 1988, Margiotta and a co-defendant were arrested after delivering 4,986 grams of cocaine to the informant.

 I. Statutory Authority for the Term of Supervised Release

 At the time of Margiotta's conviction, section 846 of Title 21 read as follows:

 Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy. [Emphasis supplied]

 Effective November 18, 1988 -- roughly two weeks after Margiotta's guilty plea -- the highlighted language was amended to read "shall be subject to the same penalties as those prescribed for the offense." Pub. L. 100-690, § 6470(a), 102 Stat. 4377 (1988). The amendment of section 846 came in response to the Supreme Court decision in Bifulco v. United States, 447 U.S. 381, 65 L. Ed. 2d 205, 100 S. Ct. 2247 (1980). In that case, the Court held that the language of section 846, as originally enacted, did not permit the imposition of a special parole term under the penalty provisions of the substantive offense statute. Id. at 400.

 It is true, as a threshold matter, that the holding in Bifulco extends not only to terms of special parole, but also to sentences of supervised release. See United States v. Cardenas, 917 F.2d 683, 688 (2d Cir. 1990). Moreover, the ex post facto clause clearly bars application to Margiotta of the revised language of section 846, effective November 18, 1988, as the charged conduct occurred before that date. Accordingly, the specific provision in 21 U.S.C. § 841(b)(1)(C) for imposing a term of supervised release in addition to imprisonment may not be applied to Margiotta.

 However, Margiotta overlooks 18 U.S.C. § 3583, which provides for terms of supervised release for all felonies and misdemeanors. Enacted in 1984, and taking effect on November 1, 1987, section 3583 unguestionably permits the imposition of a term of supervised release in Margiotta's case notwithstanding Bifulco. See Rodriguez v. United States, 951 F.2d 26, 28 (2d Cir. 1991); United States v. Schanning, 941 F.2d 807, 808 (9th Cir. 1991) (per curiam); United States v. Osborne, 931 F.2d 1139, 1144-46 (7th Cir. 1991); United States v. Jordan, 915 F.2d 622, 629-31 (11th Cir. 1990), cert. denied, 113 L. Ed. 2d 725, 111 S. Ct. 1629 (1991); United States v. Van Nymegen, 910 F.2d 164, 165-66 (5th Cir. 1990) (per curiam). As many of these same cases observe, section 5D1.1 of the Sentencing Guidelines *fn1" (also effective November 1, 1987) provides an even stronger basis for imposing supervised release: subsection (a) mandates that "the court shall order a term of supervised release to follow imprisonment when a sentence of imprisonment of more than one year is imposed . . . ." [Emphasis supplied] Thus, there can be no dispute that Margiotta was subject to a term of supervised release.

 II. The Maximum Term Available

 As to the actual 5-year term imposed in this case, however, the government now contends that this court committed error. The government maintains instead that Margiotta was guilty of a Class C felony, and that as a result the maximum term of supervised release in his case is 3 years. Having considered this ...

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