507 F2d 190 United States v. Dankert 74-3282

507 F.2d 190

UNITED STATES of America, Plaintiff-Appellee,
Larry Michael DANKERT, Defendant-Appellant.
No. 74-3282 Summary Calendar. *
*Rule 18, 5 Cir.; see Isbell Enterprises, Inc.
Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409.

United States Court of Appeals, Fifth Circuit.

Jan. 22, 1975.

J. V. Eskenazi, Federal Public Defender (Court-appointed), Michael L. Brodsky, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.

Robert W. Rust, U.S. Atty., Donald L. Ferguson, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BELL, SIMPSON and MORGAN, Circuit Judges.


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This is an appeal from a part of the sentence imposed as a result of a plea of guilty to a charge of conspiring, in violation of 21 U.S.C.A. 963, to import cocaine, a Schedule II narcotic controlled substance, into the United States, a violation of 21 U.S.C.A. 952(a). The complaint is to that part of the sentence imposing a special parole term of three years following release from incarceration.


It is conceded that a special parole term following incarceration is mandatory under 21 U.S.C.A. 960(b)(1), upon conviction of a substantive violation of 952(a)(1). The argument is that the conspiracy statute, 963, does not include the special parole term provision of 960(b)(1). We disagree. 963 provides:


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.


The punishment provision of 963 must be considered in light of 952(a) and 960, since it is these statutes which define the offense which was the object of the conspiracy, and provide for punishment therefor. They provide:


952(a) It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any controlled substance in schedule i or II of subchapter I of this chapter 960(a)(1)


Any person who--


contrary to section 952, 953, or 957 of this title, knowingly or intentionally imports or exports a controlled substance, shall be punished as provided in subsection (b) of this section. 960(b)(1)

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In the case of a violation under subsection (a) of this section with respect to a narcotic drug in schedule I or II, the person committing such violation shall be imprisoned not more than fifteen years, or fined not more than $25,000, or both. If a sentence under this paragraph provides for imprisonment, the sentence shall include a special parole term of not less than three years in addition to such term of imprisonment.


We have no trouble whatever in understanding the language of 963 to permit punishment not exceeding that provided for an offense in violation of 952(a). Appellant was charged with conspiring to commit such an offense and pleaded guilty thereto. The 'substantive offense in question carried a special parole term of three years. Appellant received a special parole term of three years.