MOSHE GOZLON-PERETZ, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-7370

   In The Supreme Court Of The United States

   October Term, 1990

   On Writ Of Certiorari To The United States Court Of Appeals For The
Third Circuit

   Brief For The United States

            TABLE OF CONTENTS
   Question Presented
   Opinion below
   Jurisdiction
   Statutory provisions involved
   Statement
   Introduction and summary of argument
   Argument:
      The mandatory minimum terms of supervised release
      required by the Anti-Drug Abuse Act of 1986
      apply to offenses committed on or after the date of
      enactment, October 27, 1986
      A. Congress did not postpone all the penalty provisions
         in Section 1002 of the 1986 Act
      B. The post-confinement monitoring provisions
         of the 1986 Act became effective on October
         27, 1986
      C. Petitioner was subject to a mandatory term of
         supervised release rather than special parole
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals deciding the question presented
(J.A. 43-53) is reported at 894 F.2d 1402;  the court of appeals'
opinion upholding petitioner's conviction (J.A. 19-42) is reported at
865 F.2d 551.

                             JURISDICTION

   The judgment of the court of appeals was entered on January 25,
1990.  The petition for a writ of certiorari was filed on April 25,
1990, and granted on June 18, 1990.  The jurisdiction of this Court
rests on 28 U.S.C. 1254(1).

                     STATUTORY PROVISIONS INVOLVED

   Section 1002 of the Anti-Drug Abuse Act of 1986, Pub. L. No.
99-570, 100 Stat. 3207-3 to 3207-4, provides as follows:

         Section 401(b)(1) of the Controlled Substances Act (21 U.S.C.
      841(b)(1)) is amended --

         (1) by redesignating subparagraph (C) as subparagraph (D);
         and

         (2) by striking out subparagraphs (A) and (B) and inserting
      the following in lieu thereof:

         "(1)(A) In the case of a violation of subsection (a) of this
      section involving --

         "(i) 1 kilogram or more of a mixture or substance containing
      a detectable amount of heroin;

           * * * * *

      such person shall be sentenced to a term of imprisonment which
      may not be less than 10 years or more than life * * * , a fine
      not to exceed the greater of that authorized in accordance with
      the provisions of title 18, United States Code or $4,000,000 if
      the defendant is an individual * * * , or both.  * * * Any
      sentence under this subparagraph shall * * * impose a term of
      supervised release of at least 5 years in addition to such term
      of imprisonment * * * .  Notwithstanding any other provision of
      law, the court shall not place on probation or suspend the
      sentence of any person sentenced under this subparagraph.  No
      person sentenced under this subparagraph shall be eligible for
      parole during the term of imprisonment imposed therein. "(B) In
      the case of a violation of subsection (a) of this section
      involving -- "(i) 100 grams or more of a mixture or substance
      containing a detectable amount of heroin;

          * * * * *

      such person shall be sentenced to a term of imprisonment which
      may not be less than 5 years and not more than 40 years * * * ,
      a fine not to exceed the greater of that authorized in
      accordance with the provisions of Title 18, United States Code,
      or $2,000,000 if the defendant is an individual * * * , or both.
       * * * Any sentence imposed under this subparagraph shall * * *
      include a term of supervised release of at least 4 years in
      addition to such term of imprisonment * * * .  Notwithstanding
      any other provision of law, the court shall not place on
      probation or suspend the sentence of any person sentenced under
      this subparagraph.  No person sentenced under this subparagraph
      shall be eligible for parole during the term of imprisonment
      imposed therein.

   Section 1004 of the Anti-Drug Abuse Act of 1986, 100 Stat. 3207-6,
as follows:

         (a) The Controlled Substances Act and the Controlled
      Substances Import and Export Act are amended by striking out
      "special parole term" each place it appears and inserting "term
      of supervised release" in lieu thereof.

         (b) The amendments made by this section shall take effect on
      the date of the taking effect of section 3583 of title 18,
      United States Code.

                          QUESTION PRESENTED

   Whether the mandatory minimum terms of supervised release required
by the Anti-Drug Abuse Act of 1986 became effective for offenses
committed on or after the date of enactment, October 27, 1986.

                               STATEMENT

   1. After a jury trial in the United States District Court for the
District of New Jersey, petitioner was convicted of conspiring to
distribute more than one kilogram of heroin, in violation of 21 U.S.C.
846 (Count 1);  distributing approximately 240 grams of heroin, in
violation of 21 U.S.C. 841(a)(1) (Count 2);  and possessing more than
one kilogram of heroin with intent to distribute it, in violation of
21 U.S.C. 841(a)(1) (Count 3).  He was initially sentenced to
concurrent terms of 20 years' imprisonment on Count 1;  15 years'
imprisonment and a five-year term of special parole on Count 2;  and
15 years' imprisonment and a five-year term of special parole on Count
3.  He was also fined $200,000.  J.A. 18.

   The facts of petitioner's offenses are described in the court of
appeals' opinion in United States v. Levy, 865 F.2d 551, 552-556 (3d
Cir. 1989) (en banc).  J.A. 23-28.  In February 1987, petitioner
conspired with his co-defendants Levy and Yehuda to sell heroin to an
undercover DEA agent.  The three defendants were arrested at the Sands
Hotel in Atlantic City, New Jersey, after they agreed to sell
approximately 250 grams of heroin to the undercover agent.  More than
two kilograms of heroin was subsequently discovered in a room that
Yehuda had rented in the hotel.  J.A. 27-28.

   2. The court of appeals affirmed petitioner's convictions but
ordered the district court to redesignate petitioner's five-year term
of post-confinement monitoring as "supervised release" rather than
"special parole." J.A. 53.  The court rejected petitioner's argument
that the post-confinement monitoring provisions of the Anti-Drug Abuse
Act of 1986 (1986 Act) did not become effective until November 1,
1987, and thus that he is not subject to any form of post-confinement
monitoring.  J.A. 47-50.

   The 1986 Act provided for a mandatory term of "supervised release"
to be imposed following a term of imprisonment for a variety of
serious drug offenses.  See Pub. L. No. 99-570, Tit. I, Sections 1002,
1102, 1104, 1302, 1866.  Although the 1986 Act did not expressly set
forth the date on which the new penalty provisions would become
effective, the court of appeals applied the well-established principle
that absent some provision to the contrary, a statute is deemed to be
effective on the date of its enactment.  Accordingly, the court held
that the penalty provisions of the 1986 Act, including the portions
governing post-confinement monitoring, became effective on the date of
enactment, October 27, 1986, and therefore applied to petitioner's
offenses, which occurred in February 1987.  J.A. 43-53.

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   This case ushers the Court into the intricacies of the federal
controlled substances statutes, a body of law that Congress has
frequently revisited and modified.  The case arises out of one such
modification, and the emergence of a new concept in federal law, that
of "supervised release."

   The penalties originally imposed in 1970 by the Controlled
Substances Act, Pub. L. No. 91-513, Tit. II, 84 Stat. 1242, included a
term of "special parole" for certain serious drug offenses.  The
special parole term would commence at the end of the defendant's
entire term of imprisonment, even if the defendant served a portion of
that term on "ordinary" parole.  See 18 U.S.C. 4205, 4208 (1982);  21
U.S.C. 841(c) (1982).  Revocation of special parole would result in a
new term of imprisonment for the entire special parole term, with no
credit for the time the defendant had spent on special parole.  The
defendant could be reparoled, however, prior to the end of the new
term of imprisonment.  21 U.S.C. 841(c) (1982).

   In 1984, as part of the Comprehensive Crime Control Act of 1984,
Pub. L. No. 98-473, Tit. II, ch. V, 98 Stat. 2068, Congress created a
new penalty provision for large-scale drug offenses.  The new
provision, 21 U.S.C. 841(b)(1)(A) (Supp. II 1984), raised the maximum
term of imprisonment for a first offense from 15 to 20 years for
certain large-scale drug offenses, including offenses involving 100
grams or more of heroin.  For reasons that are unclear, the new
provision did not contain any reference to special parole.  This
unexplained omission was odd, since special parole remained a part of
all the sentencing provisions for serious crimes that were carried
over from prior law.  As of 1984, then, the statute required
imposition of special parole terms for most drug offenses, but not for
the least serious or the most serious.

   Something else occurred in 1984.  As part of a wholesale revision
of the federal sentencing system, the 1984 Act prospectively abolished
both ordinary and special parole and created a new type of
post-confinement monitoring called "supervised release." The
change-over to the new sentencing system was scheduled to take place
on November 1, 1987.  Under supervised release, the court rather than
the Parole Commission would oversee the defendant's post-confinement
monitoring (although the actual monitoring would still be performed by
probation officers).  See 18 U.S.C. 3583, 3601 (Supp. II 1984).  The
new statute authorized courts to alter the conditions, or terminate or
extend the term of supervised release prior to its expiration.  18
U.S.C. 3583(e) (Supp. II 1984).  In the event of a violation of the
supervised release order, the statute authorized a court to hold the
defendant in contempt of court.  18 U.S.C. 3583(e)(3) (Supp. II 1984).

   In 1986, Congress once again amended the controlled substances
statutes and comprehensively revised and enhanced the penalties for
drug offenses.  See Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570,
Tit. I, Sections 1001 et seq., 100 Stat. 3207-2.  In Section 1002 of
the 1986 Act, Congress created a new drug penalty for especially
large-scale offenses, such as offenses involving one kilogram or more
of heroin.  For such high-volume offenses, Congress authorized a
sentence of at least ten years and up to life imprisonment.  21 U.S.C.
841(b)(1)(A) (Supp. IV 1986).  For violations involving between 100
grams and one kilogram of heroin, Congress authorized a sentence of
between five and 40 years' imprisonment.  21 U.S.C. 841(b)(1)(B)
(Supp. IV 1986).  In both situations, Congress required the court to
impose a term of supervised release.  The supervised release term was
to be at least five years for offenses governed by Section
841(b)(1)(A), and at least four years for offenses governed by Section
841(b)(1)(B).  For other offenses involving Schedule I and II
controlled substances (see 21 U.S.C. 812), the statute contained no
mandatory minimum term of imprisonment (unless the offense resulted in
serious injury or death), but provided for a maximum of 20 years'
imprisonment.  In addition, any term of imprisonment for such offenses
had to be accompanied by at least a three-year term of supervised
release.  21 U.S.C. 841(b)(1)(C) (Supp. IV 1986).  The final
subsections, 21 U.S.C. 841(b)(1)(D), (b)(2), and (b)(3) (Supp. IV
1986), carried forward the provisions of prior law largely unchanged
as to imprisonment and post-confinement monitoring.  Subsection
(b)(1)(D) provided that offenses involving marijuana and hashish
(except in the huge quantities governed by Section 841(b)(1)(A) and
(B)) continued to be subject to a maximum of five years' imprisonment,
and it continued to provide that any term of imprisonment had to be
accompanied by at least a two-year term of special parole.
Subsections (b)(2) and (b)(3) continued to provide that offenses
involving Schedule IV and V controlled substances were subject to a
maximum of three years' and one year's imprisonment, respectively.  A
term of imprisonment imposed under subsection (b)(2) was to be
accompanied by at least a one-year special parole term.  Subsection
(b)(3) contained no provision for special parole.  /1/

   The 1986 Act plugged the "gap" in post-confinement monitoring for
serious drug offenders that the 1984 statute had created.  It
accomplished that goal by extending supervised release to all serious
drug offenses, including those that under the 1984 statute would not
have been subject to any post-confinement monitoring.

   Petitioner argues that the 1986 Act should be read to postpone the
requirement of any form of post-confinement monitoring for serious
drug offenses for more than a year, until the date the new federal
sentencing system was to go into effect, November 1, 1987.  But the
text of the 1986 Act nowhere indicates that the effective date of the
Act's penalty provisions was to be postponed, and nothing in the
legislative history suggests that Congress meant to delay the
effectiveness of the new drug penalties or extend the gap in
post-confinement monitoring for another year.  It is therefore not
difficult to dismiss petitioner's claim that the 1986 Act should be
interpreted to postpone the effective date of the new penalty sections
as a whole or to provide for no form of post-confinement monitoring
for large-scale drug offenders until November 1, 1987.

   A more difficult question is whether the form of post-confinement
monitoring that Congress intended for the period between October 27,
1986, and November 1, 1987, was supervised release or special parole.
That question arises because of a last-minute change that was made in
the bill that became the 1986 Act.  That change substituted the term
"supervised release" for "special parole" in several key sections of
the bill.  Before that change was made, the bill had designated
special parole, rather than supervised release, as the interim form of
post-confinement monitoring for serious drug offenders who committed
crimes between October 27, 1986, and November 1, 1987.  The
last-minute change indicated an apparent intention to initiate the
regime of supervised release immediately, rather than postponing it
for a year.  Yet the drafters did not do a particularly careful job of
effecting that change.  In particular, they failed to eliminate the
references to special parole that remained in the unamended provisions
of the controlled substances statutes, and they failed to make the
definitional provision for supervised release (18 U.S.C. 3583)
effective immediately.  As a result, there has been confusion as to
which form of post-confinement monitoring was in effect during the
interim period.

   Complete internal consistency within the controlled substances
statutes would require the last-minute change in the bill to be
disregarded and the term "supervised release" to be read as if it had
been left as "special parole." That reading would make it clear that
special parole would be the form of post-confinement monitoring for
all serious drug offenses committed between October 27, 1986, and
November 1, 1987.  Because, after 1986, the differences between
special parole and supervised release were minor, any such judicially
crafted amendment of the language of the statute would have no
significant practical impact.  But that course would be unfaithful to
what Congress actually did:  Congress specifically designated
supervised release as the appropriate form of post-confinement
monitoring for defendants such as petitioner.  Because the
incongruities in the statute created by the institution of supervised
release as of October 27, 1986, do not render the statutory scheme
absurd or unworkable, the Court should take Congress at its word.  The
Court should hold, as the court of appeals concluded, that persons in
petitioner's position are subject to terms of supervised release
beginning at the conclusion of their terms of imprisonment.

                               ARGUMENT

   THE MANDATORY MINIMUM TERMS OF SUPERVISED RELEASE REQUIRED BY THE
ANTI-DRUG ABUSE ACT OF 1986 APPLY TO OFFENSES COMMITTED ON OR AFTER
THE DATE OF ENACTMENT, OCTOBER 27, 1986

   Section 1002 of the Anti-Drug Abuse Act of 1986 established
mandatory terms of imprisonment for large-scale drug offenses such as
the ones of which petitioner was convicted.  In addition, it provided
that any person convicted of such an offense would be subject to a
mandatory term of supervised release -- at least five years if the
offense involved a kilogram or more of a mixture containing heroin,
and at least four years if the offense involved 100 grams or more of a
mixture containing heroin.  See 21 U.S.C. 841(b)(1)(A) and (B) (Supp.
IV 1986).  Neither Section 1002 nor any other provision of the 1986
Act expressly set forth the date on which that Section would become
effective.

   It is well settled that in the absence of an express provision to
the contrary, "an act takes effect on the date of its enactment."
United States v. York, 830 F.2d 885, 892 (8th Cir. 1987), cert.
denied, 484 U.S. 1074 (1988);  see Arnold v. United States, 13 U.S. (9
Cranch) 104, 119-120 (1815);  Matthews v. Zane, 20 U.S. (7 Wheat.)
164, 210-211 (1822);  United States v. Stillwell, 854 F.2d 1045, 1047
(7th Cir.), cert. denied, 488 U.S. 973 (1988);  United States v.
Shaffer, 789 F.2d 682, 686 (9th Cir. 1986);  2 N. Singer, Sutherland
Statutory Construction Section 33.06 at 12 (C. Sands 4th ed. 1986).
In reliance on that rule, Congress typically omits an effective date
provision from a statute unless it wishes the date of effectiveness to
be postponed.  Because no provision delayed the effective date of
Section 1002, the supervised release provisions of that statute
applied to petitioner's offense.  The court of appeals was therefore
correct in directing the district court to impose a term of supervised
release on petitioner.

   In our view, the simple propositions set forth in the foregoing two
paragraphs answer this case.  The whole of petitioner's brief is, in
essence, an effort to avoid the force of this straightforward
application of statutory language and basic principles of statutory
construction.  We devote the remainder of our brief to rebutting those
efforts.  But in spite of the complexity introduced by reference to a
host of statutory provisions that underwent biennial revision between
1984 and 1988, the heart of the case remains simple:  on October 27,
1986, the President signed a bill that contained a provision requiring
a term of supervised release for persons in petitioner's position;
nothing in the bill delayed the effective date of the provision that
imposed that requirement;  the provision, including the mandatory term
of supervised release, therefore became effective on the date the
President signed the bill and made it law.

   A. Congress Did Not Postpone All The Penalty Provisions In Section
1002 Of The 1986 Act

   Petitioner begins with a bold stroke.  He argues (Br. 24-28) that
Congress intended to postpone all the penalty provisions of Section
1002 of the 1986 Act -- not just the supervised release provisions --
until November 1, 1987, more than a year after they were signed into
law.  That argument is plainly wrong.  It conflicts with the language
of the statute, it finds no support in the legislative history, and it
has been rejected by every court that has considered it.  /2/

   First, there is nothing in Section 1002 or any other section of the
1986 Act that suggests that the penalty provisions of Section 1002
were to have a delayed effective date.  The 1986 Act expressly delayed
the effective date of several of the Act's other provisions (Sections
1004(a), 1006(a), 1007(a), and 1009(a)), so the failure to prescribe a
delayed effective date for Section 1002 is particularly telling.  See
General Motors Corp. v. United States, 110 S. Ct. 2528, 2532 (1990)
(inappropriate to assume a time limitation in a silent statutory
provision when "the very next provision of the Act contains just such
an express time restraint");  Russello v. United States, 464 U.S. 16,
23 (1983) ("(W)here Congress includes particular language in one
section of a statute but omits it in another section of the same Act,
it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.").  The language of
Section 1002 expressed the will of Congress to increase sentences for
serious drug offenders, and nothing in the text of the statute
indicates that Congress wished to supplement the new regime only after
a year's delay.

   The legislative history likewise provides no support for the "one
year delay" hypothesis.  The new drug penalties were enacted in an
atmosphere of urgency, to provide for "increased, stiff penalties for
most drug related offenses." 132 Cong. Rec. 26,473 (1986)
(section-by-section analysis of Senate bill, S. 2878, 99th Cong., 2d
Sess. (1986)).  When last-minute conflicts developed over other
aspects of the proposed bill, the legislators urged compromise so that
the legislation would not be delayed until the next congressional
session.  See 132 Cong. Rec. S15,934 (daily ed. Oct. 10, 1986)
(remarks of Sen. Chiles and Sen. Dole);  132 Cong. Rec. 31,407 (1986)
(remarks of Sen. Dole);  132 Cong. Rec. 32,717 (1986) (remarks of Rep.
Pepper).  It is impossible to infer from legislators' comments in the
course of considering the 1986 Act -- which unmistakably reveal the
crisis atmosphere surrounding the enactment of the bill -- that
Congress meant to put off the effective date of the 1986 Act's penalty
scheme for more than a year.

   Petitioner's argument rests entirely on the supposed anomaly
created by the immediate imposition of mandatory minimum terms of
imprisonment by Section 1002 and the postponement of the changes made
by Sections 1007(a) and 1009(a) of the 1986 Act.  The latter
provisions authorized sentencing below the mandatory minimum for
certain offenders who cooperated with the government.  See Pub. L. No.
99-570, Tit. I, Sections 1007(b), 1009(b).  Petitioner argues that if
Section 1002 became effective upon enactment, there would be no
possibility of sentences below the mandatory minimum for offenses
committed during the one-year period between October 27, 1986, and
November 1, 1987.

   There is no such anomaly.  Congress recognized this potential
problem and fixed it.  In December 1987, Congress enacted corrective
legislation that ensured that the provisions permitting departures
from mandatory minimum sentences in the case of cooperating defendants
would apply to offenses committed before the effective date of the
sentencing guidelines, November 1, 1987.  See Sentencing Act of 1987,
Pub. L. No. 100-182, Section 24, 101 Stat. 1271.  /3/ Not only does
that legislation undermine petitioner's claim of an anomaly, but it
destroys his argument that Congress intended the mandatory minimum
penalties of Section 1002 to be postponed until November 1, 1987.  The
corrective statute was necessary because, and only because, Congress
recognized that the mandatory minimum penalties had gone into effect
as of October 27, 1986, and that the offsetting provision for
reductions of sentence below the mandatory minimums should be made
effective for the year preceding the effective date of the guidelines.

   Finally, petitioner's argument that the whole of Section 1002 did
not become effective until November 1, 1987, would have implications
beyond the operation of that specific section.  Section 1102 of the
1986 Act created a new offense of employing or using persons under 18
years of age in drug operations.  See 20 U.S.C. 845b (Supp. IV 1986).
Like Section 1002, the new provision required a mandatory minimum term
of imprisonment for high-volume offenses, and it made parole
inapplicable to persons convicted of that offense.  The logic of
petitioner's argument would require that the effective date of Section
845b also be postponed until November 1, 1987, even though there is
not a shred of evidence that Congress intended that section to lie
fallow for a year.  /4/

   B. The Post-Confinement Monitoring Provisions Of The 1986 Act
Became Effective On October 27, 1986

   Petitioner's principal contention (Br. 28-49) is that even if the
fine and imprisonment provisions of Section 1002 were intended to go
into effect immediately, Congress intended to delay the effective date
of the post-confinement monitoring provisions of Section 1002 until
November 1, 1987.  Thus, because prior to the effective date of
Section 1002 the controlled substances statutes contained no provision
for post-confinement monitoring for the category of large-scale drug
offenses that was created in 1984, petitioner argues that he may not
be sentenced to either special parole or supervised release.

   Contrary to petitioner's contention, it is clear from the text, the
structure, and the background of the 1986 Act that Congress wanted all
the penalty provisions in Section 1002 to go into effect at the same
time.  First, the new penalty provisions were all enacted together as
part of Section 1002.  We showed in Part A that Section 1002 went into
effect on the date of its enactment, October 27, 1986.  It is a very
small step to the further conclusion that all of Section 1002,
including the supervised release provisions, went into effect at that
time.  No provision of the statute postponed the effective date of the
supervised release provisions, and it would be inconsistent with the
approach used in other parts of the 1986 Act for different ingredients
of the penalty provisions of Section 1002 to become effective at
different times.  /5/

   Second, the structure of the new penalty provisions indicates that
Congress wanted all three penalty features to go into effect together.
 The new penalties -- imprisonment, fines, and supervised release --
were grouped together in a single paragraph for each of the new
offense levels in Section 841(b)(1).  The package of penalties for
each offense level was thus obviously intended to operate as an
integrated whole.  It is difficult to imagine that Congress could have
wanted the third part of the new three-part penalty scheme to be
postponed for a year while the first two -- imprisonment and fines --
went into effect immediately.

   Finally, the drafting history of the 1986 Act confirms that
Congress intended the post-confinement monitoring provisions for
large-scale drug offenses to become effectively immediately upon
enactment.  Both the House and Senate versions of the bill that became
the 1986 Act contained the basic features of the statute as ultimately
enacted, including the offense classification scheme and the
requirements for mandatory minimum terms of imprisonment with no
parole.  The original bills also required that a term of "special
parole" be imposed as part of the package of penalties under each
subsection of Section 841(b).  See H.R. 5484, 99th Cong., 2d Sess.
(1986);  S. 2878, 99th Cong., 2d Sess. (1986).  Under both bills, the
new penalty provisions were to become effective immediately and to
apply until the effective date of the new federal sentencing system,
November 1, 1987.  The House bill provided for special parole to be
repealed as of that date, while the Senate bill provided that at that
time all references to special parole were to be changed to supervised
release.  See H.R. Rep. No. 845, 99th Cong., 2d Sess. 20 (1986);  132
Cong. Rec. H6630 (daily ed. Sept. 11, 1986) (Section 608(b) of House
bill);  132 Cong. Rec. 26,101 (1986) (Section 1007 of Senate bill).
/6/ The House concurred in the Senate's version.  132 Cong. Rec.
29,608-29,633 (1986).

   Just before final passage of the bill, and without explanation, the
words "supervised release" were substituted for the words "special
parole" whenever the term "special parole" appeared in Section 1002
and other penalty provisions of the bill.  See 132 Cong. Rec.
32,728-32,745 (1986).  That version was enacted by both houses and
signed into law on October 27, 1986.  /7/

   Nothing about the last-minute change suggests that Congress meant
for it to delay the effective date of any part of Section 1002 or the
other affected provisions.  Prior to the change, the bill provided for
special parole to serve as the form of post-confinement monitoring
until November 1, 1987, when special parole would be replaced by
supervised release.  The most plausible explanation for the change is
that the drafters wanted to accelerate the shift from special parole
to supervised release, and to go to a system of supervised release
immediately rather than extending special parole for another year.
But whatever the reason for the last-minute change, one thing is
clear:  if Congress had wanted to alter the pending bill by postponing
any form of post-confinement monitoring until November 1, 1987, it
would not have done so by substituting one form of post-confinement
monitoring for another in sections of the bill that were to become
effective immediately.

   In support of the his argument, petitioner invokes (Br. 14-19)
Section 1004 of the 1986 Act.  That Section went into effect on
November 1, 1987, and amended the controlled substances statutes by
substituting "term of supervised release" for "special parole term"
wherever the latter appeared.  Petitioner describes Section 1004 as
"deal(ing) explicitly with the question of when mandatory supervised
release became effective." Pet. Br. 15.  That is true for all
provisions of the statute that continued to use the term "special
parole" as of November 1, 1987.  But Section 1004 did not affect
provisions of the statute in which the conversion to supervised
release had already been made, i.e., those provisions that were
converted to supervised release as a result of the last-minute change
in the 1986 Act.  /8/

   As we explained in Part A above, Section 1002 and the other penalty
provisions of the 1986 Act went into effect immediately upon
enactment.  For that reason, Section 1004 did not affect those
provisions at all.  The post-confinement monitoring scheme established
by those provisions of the 1986 Act is therefore fully applicable to
petitioner.  /9/

   C. Petitioner Was Subject To A Mandatory Term Of Supervised Release
Rather Than Special Parole

   Even if we are correct that Congress intended some form of
post-confinement monitoring to go into effect as of October 27, 1986,
it could still be argued (although petitioner does not so argue) that
the form of post-confinement monitoring that should apply during the
one-year interim period is special parole rather than supervised
release.  If that argument were accepted, it would resolve many of the
statutory anomalies created by applying Section 1002 of the 1986 Act
according to its terms.  And since special parole and supervised
release are so similar, construing the statute in that way would not
defeat Congress's purpose of ensuring that some form of
post-confinement monitoring would be applicable to persons committing
crimes after October 27, 1986.  In fact, there is only one real
problem with that construction of the statute, but it is an imposing
one:  the language of the statute, which unambiguously refers to
supervised release, is squarely to the contrary.

   The drafters who made the last-minute switch from special parole to
supervised release in the 1986 Act apparently failed to recognize the
need to make a variety of corresponding changes in provisions of the
underlying statute that were not amended by the 1986 Act.  Congress's
failure to make those corresponding changes led to the statutory
anomalies that we discuss below and to which petitioner devotes much
of his brief.  But Congress's lack of attention to the collateral
effects of the change from special parole to supervised release does
not justify judicial disregard of the change itself.  The anomalies
indicate, of course, that the statute does not function as smoothly as
it might.  But inefficiency does not confer upon the courts a license
to legislate.  As this Court has held time and again, it is the duty
of the courts to apply the statute as written, even if it would have
been more sensible for Congress to have drafted the statute
differently.  See Commissioner v. Asphalt Products Co., 482 U.S. 117,
121 (1987) ("Judicial perception that a particular result would be
unreasonable may enter into the construction of ambiguous provisions,
but cannot justify disregard of what Congress has plainly and
intentionally provided.");  Busic v. United States, 446 U.S. 398,
404-405 (1980) ("to the extent that cases can be hypothesized in which
(the Court's holding) may support curious or seemingly unreasonable
comparative sentences, it suffices to say that the asserted
unreasonableness flows not from (the Court's decisions), but rather
from the statutes as Congress wrote them");  Bifulco v. United States,
447 U.S. 381, 401 (1980) (Burger, C.J., concurring) ("Our compass is
not to read a statute to reach what we perceive -- or even what we
think a reasonable person should perceive -- is a 'sensible result';
Congress must be taken at its word unless we are to assume the role of
statute revisers");  see also TVA v. Hill, 437 U.S. 153, 173 (1978).

   Petitioner argues (Br. 40-44) that the district court may not
impose a sentence of supervised release for offenses committed prior
to November 1, 1987, because Section 3583 of Title 18, which sets
forth guidelines for imposing and revoking supervised release, did not
go into effect until that date.  See Sentencing Reform Act of 1984,
Pub. L. No. 98-473, Tit. II, Section 212, 98 Stat. 1999.  But the
premise of petitioner's argument is wrong:  the "general power of
judges to impose supervised release" (Br. 42) on offenders such as
petitioner does not arise from Section 3583.  In Section 1002 of the
1986 Act, which amended Section 841(b) of Title 21, Congress
explicitly granted sentencing courts authority to impose
post-confinement monitoring in the form of supervised release.  Thus,
the source of the district court's sentencing authority in
petitioner's case is 21 U.S.C. 841(b), not 18 U.S.C. 3583.  The
effective date of Section 3583 therefore does not control the
availability of supervised release with respect to offenses governed
by the penalty provisions of Section 841(b).

   Section 3583 sets forth the conditions that a court must include in
an order providing for supervised release (Section 3583(d)), and it
governs when an order of supervised release may be revoked or its
conditions modified (Section 3583(e)).  Petitioner suggests that
supervised release could not be imposed before Section 3583 went into
effect.  That is not true.  While it may have been more symmetrical
for all the supervised release provisions to go into effect at the
same time, the supervised release provisions of Section 1002
functioned as intended during the period between October 27, 1986, and
November 1, 1987, even though Section 3583 was not in effect during
that time.

   The only consequence of the delay in the effective date of Section
3583 is that, in imposing supervised release prior to November 1,
1987, courts were not strictly bound by the conditions set forth in
Section 3583.  Nonetheless, the enacted but as yet inchoate Section
3583 gave clear direction to the courts as to the conditions Congress
believed to be appropriate for supervisory release orders, and we are
unaware of any case in which a district court departed from those
terms simply because the court theoretically had authority to do so.
The situation is no different than if Congress had chosen not to enact
Section 3583 at all, but instead had simply indicated informally and
in a nonbinding fashion how it expected the courts to administer the
new form of post-confinement monitoring.

   Petitioner argues (Br. 22-23) that supervised release imposed for
offenses committed prior to November 1, 1987, could not be revoked,
because the revocation provision of Section 3583 was not in effect at
that time.  Because Congress could not have intended to create a
remedy with no means to enforce it, petitioner argues, the
unavailability of revocation for offenses committed prior to November
1, 1987, is another reason not to construe the Act to provide for
supervised release during that period.

   There are two responses to that argument.  First, as a practical
matter, the delay in the effective date of the revocation provision of
Section 3583 is unlikely to have affected any cases.  To be eligible
for supervised release under the 1986 Act, a defendant would have to
commit his crime after October 27, 1986.  By the time such a defendant
was arrested and convicted, served a term of imprisonment, violated
his supervised release, and was re-arrested for that violation, the
revocation provision of Section 3583 would almost certainly have
become effective.  We are aware of no case in which this problem has
arisen.  /10/

   Second, even if revocation was unavailable for crimes committed
prior to November 1, 1987, that does not mean that supervised release
orders entered in such cases were toothless.  A violation of a
supervised release order, like a violation of any other order that a
court is authorized to enter, could be punished as a contempt of
court, see 18 U.S.C. 401(3).  /11/

   To be sure, one may well question why Congress, having chosen to
enact guidelines for imposing and administering supervised release,
decided to require offenders to receive sentences of supervised
release before those guidelines would go into effect.  Most likely,
the drafters simply overlooked the delayed effective date of Section
3583 when they made the last-minute change from special parole to
supervised release in Section 1002 of the 1986 Act.  They also likely
overlooked the confusion that the change would produce in the
administration of provisions that imposed one form of post-confinement
monitoring by cross-reference to provisions that prescribed a
different form of post-confinement monitoring.  /12/ However, the fact
that the oversight has created awkwardness in applying a few of the
Act's other penalty provisions is insufficient to overcome the
unequivocal requirement of the statute that a defendant in
petitioner's position serve a mandatory term of supervised release.

   Finally, petitioner argues (Br. 44-49) that failing all else, he
should prevail because of the rule of lenity.  But as this Court
observed, the rule of lenity "only serves as an aid for resolving an
ambiguity;  it is not to be used to beget one.  * * * The rule comes
into operation at the end of the process of construing what Congress
has expressed, not at the beginning as an overriding consideration of
being lenient to wrongdoers." Callanan v. United States, 364 U.S. 587,
596 (1961).  Because Congress spoke plainly in Section 1002, there is
no ambiguity in this case for the rule of lenity to resolve.  See
United States v. Turkette, 452 U.S. 576, 587-588 n.10 (1981);  United
States v. Batchelder, 442 U.S. 114, 121 (1979);  Scarborough v. United
States, 431 U.S. 563, 577 (1977).  The fact that the last-minute
change from special parole to supervised release may have been
careless does not mean that the change rendered the statute ambiguous.

   The rule of lenity does not help petitioner for another reason.  As
we have argued above, it is quite clear that Congress intended some
form of post-confinement monitoring to be available for persons in
petitioner's position immediately upon the enactment of the 1986 Act.
Therefore, the only question as to which there can be a serious claim
of ambiguity is which form of post-confinement monitoring is
applicable.  As petitioner concedes (Br. 30), it is not clear whether
special parole or supervised release is more "lenient";  the rule of
lenity would therefore be difficult to apply in this setting in any
event.  But petitioner is not asking for the rule of lenity to be used
to determine which of the two competing forms of post-confinement
monitoring should be applicable to him.  He is making the very
different, and much bolder, claim that the rule of lenity should be
applied to free him from any post-confinement monitoring at all.  His
boldness should not be rewarded.  The language, history, and purpose
of the statute unambiguously establish that Congress intended a
defendant like petitioner to be subject to some form of
post-confinement monitoring;  in consequence, the rule of lenity
cannot properly be invoked to frustrate that decision.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Acting Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   AMY L. WAX

      Assistant to the Solicitor General

   RICHARD A. FRIEDMAN

      Attorney

   SEPTEMBER 1990

   /1/ In addition to changing the penalty provisions, the 1986 Act
modified the provision governing the operation of supervised release.
Instead of continuing to rely on contempt of court as a sanction for
violation of supervised release orders, Congress established a scheme
of revocation patterned after the revocation provision applicable to
special parole.  Under the new revocation provision, the term of
supervised release could be revoked and the defendant required to
serve in prison all or part of the supervised release term, with no
credit for the time the defendant had spent on supervised release.  18
U.S.C. 3583(e)(4) (Supp. IV 1986).

   /2/ See, e.g., United States v. Duprey, 895 F.2d 303, 311 (7th Cir.
1989), cert. denied, 110 S. Ct. 1927 (1990);  United States v. Garcia,
879 F.2d 803, 804 (10th Cir. 1989);  United States v. Charleus, 871
F.2d 265, 269 (2d Cir. 1989);  United States v. Padilla, 869 F.2d 372,
381-382 (8th Cir.), cert. denied, 109 S. Ct. 3223 (1989);  United
States v. Levy, 865 F.2d 551, 559 n.4 (3d Cir. 1989);  United States
v. Meyers, 847 F.2d 1408, 1415 (9th Cir. 1988).

   /3/ Petitioner suggests (Br. 27 n.17) that this provision was
rendered ineffective because the Sentencing Act of 1987 contained a
section establishing the "general effective date" of that statute,
which provided that it would apply "with respect to offenses committed
after the enactment of this Act." Pub. L. No. 100-182, Section 26, 101
Stat. 1272 (1987).  By its terms, however, Section 24 is not governed
by that "general" effective date, because Section 24 expressly applies
to "an offense committed before the taking effect of (the sentencing)
guidelines";  the Sentencing Act of 1987 was enacted on December 7,
1987, after the guidelines took effect.

   /4/ Petitioner notes (Br. 28) that the no-parole sentences provided
by Section 1002 of the 1986 Act are like the sentences contemplated by
the 1984 Act, which prospectively eliminated parole.  He suggests that
this similarity shows that Congress intended the 1986 penalty
provisions to be effective at the same time as the new federal
sentencing system.  But if Congress had intended the 1986 penalty
provisions to take effect only as of November 1, 1987, it would have
been unnecessary to state that parole was unavailable for the 1986
sentences of incarceration, since the 1984 Act eliminated parole
altogether;  that is, because every sentence imposed for conduct
committed after November 1, 1987, is a no-parole sentence, the
no-parole language in Section 1002 would be surplusage if Section 1002
did not go into effect until that date.  The same point applies, of
course, to section 1102 of the 1986 Act (21 U.S.C. 845b), which
expressly bars the application of the parole laws to the offense
created by that section.  The "no parole" provision in Section 1102
makes it clear that Congress contemplated that it would become
effective before the November 1, 1987 effective date of the new
federal sentencing system.

   /5/ Every provision of the 1986 Act that expressly postponed the
effective date of some part of the Act operated on a discrete section
or subsection.  See Sections 1004(b), 1006(a)(4), 1007(b), and
1009(b).

   /6/ The Senate bill was taken from the Administration's proposal,
see The Drug-Free America Act of 1986, a Proposal to Congress from the
President of the United States, H.R. Doc. No. 266, 99th Cong., 2d
Sess. 1-3 (1986).  The commentary accompanying the proposal explained
that "this amendment in effect transfers special parole into
supervised (release) once the Sentencing Reform Act's supervised
release provisions go into effect." H.R. Doc. No. 266, supra, at 119.
That comment makes clear that the post-confinement monitoring
provisions were to go into effect immediately, but would change from
special parole to supervised release as of November 1, 1987.

   /7/ The last-minute change in terminology from "special parole" to
"supervised release" affected all the provisions being added by the
new bill, but it did not affect those penalty provisions of the
controlled substances statutes that had called for special parole
prior to 1986 and were not amended by the 1986 Act.  Thus, supervised
release was called for in the following provisions of Title 21:
Sections 841(b)(1)(A), 841(b)(1)(B), 841(b)(1)(C), 845a(b), 845b(b),
845b(c), 960(b)(1), 960(b)(2), and 960(b)(3).  The following
provisions were unaffected by the change in terminology and continued
to provide for "special parole" even after the 1986 Act:  Sections
841(b)(1)(D), 841(b)(2), 845(a), 845(b), 845a(a), 960(b)(4), and
962(a).

   /8/ Although petitioner concedes (Br. 16) that Section 1004 "does
not literally apply to this petitioner's case," he offers an
interpretation of Section 1004 that would avoid the inconvenience of
an immediately effective Section 1002.  He submits, albeit somewhat
tentatively (Br. 16-17), that Section 1004 was meant to substitute
supervised release for special parole where the latter term appeared
in the controlled substances statutes as of 1984, not where it
appeared as of November 1, 1987.

   That argument is inventive, but it does not work.  Section 1004
states only that the substitution of one term for another in the
controlled substances statutes will take place on November 1, 1987.
It says nothing about which version of the law will be in effect on
that day.

   /9/ Petitioner argues (Br. 21) that the effective date of all
provisions of the 1986 Act calling for supervised release must be
delayed because offenders sentenced under one such provision, Section
845a(a), were eligible for ordinary parole, and Congress could not
have intended offenders to serve terms of parole and supervised
release under the same provision.  Yet parole and supervised release
are not irreconcilable.  Prior to 1987, when certain prison sentences
under Section 841(b) were still subject to parole, it was not unusual
for an offender to serve part of a term of incarceration in prison and
part on parole, to be followed by a term of special parole.  By
analogy, there is no reason why an offender who completes a term of
"ordinary" parole cannot then serve a term of supervised release.

   Petitioner also notes (Br. 21-22) that in technical amendments
enacted on November 10, 1986, Congress corrected a typographical error
in a preexisting section, 21 U.S.C. 845a(b) (Supp. II 1984);  the
amendment substituted the words "special parole term" for the words
"special term." However, the words "special term" had already been
changed to read "supervised release" by Section 1866(b) of the October
27, 1986, Act, thus superseding the statute that the technical
amendment purported to correct.  The best explanation for this
sequence is simple oversight -- a failure to recognize that Congress
had already repealed the statute that the technical amendment was
designed to repair.  That minor error does not in any way evince a
congressional intent to delay all the supervised release sentences
provided for in the 1986 Act.

   /10/ There is no ex post facto problem in applying the revocation
provision of Section 3583 to defendants who committed crimes prior to
November 1, 1987, since at the time of the crime, those defendants had
notice that they would be subject to the revocation procedures set
forth in Section 3583 if their supervised release terms were revoked
after November 1, 1987.

   /11/ Coincidentally, contempt of court was the remedy specified in
the 1984 version of Section 3583 for violations of supervised release
orders.  Although the contempt of court sanction was replaced by a
system of revocation when Section 3583 was amended in 1986, even
before it came into effect, Congress's prospective choice of contempt
of court as a remedy indicates that there would be nothing anomalous
about relying on that remedy to enforce orders of supervised release
when no other statutory remedy is provided.

   /12/ The cross-references to Section 841(b)(1) that are found in
Sections 845, 845a, and 845b create the problem.  Prior to November 1,
1987, Sections 845 and 845a(a) imposed special parole terms that were
multiples of the special parole terms authorized by Section 841(b) for
the same type and quantity of drug.  Section 845a(b) and 845b imposed
supervised release terms that were multiples of the supervised release
terms authorized by Section 841(b)(1) for the same type and quantity
of drug.  That system works fine when the offense of conviction and
the pertinent subsection of Section 841(b)(1) prescribe the same form
of post-confinement monitoring, but it does not work when the two
prescribe different forms of post-confinement monitoring.  Thus, for
example, for crimes committed before November 1, 1987, a first offense
of distributing a kilogram or more of heroin within 1000 feet of a
school (21 U.S.C. 845a(a) (Supp. IV 1986)) called for "at least twice
any special parole term authorized by Section 841(b)," but the
corresponding provision of Section 841(b) (21 U.S.C. 841(b)(1)(A)
(Supp. IV 1986)) called for a term of supervised release, not special
parole.  That statutory mismatch and the other similar mismatches
created by the cross-reference provisions in Sections 845, 845a, and
845b are obviously just drafting errors;  because it would be
"demonstrably at odds with the intention of (the) drafters" to impose
no post-confinement monitoring in those cases, see Griffin v. Oceanic
Contractors, Inc., 458 U.S. 564, 571 (1982), those cross-reference
problems, when they arise, should be solved by reading the subsection
containing the cross-reference as if it imposed the same form of
post-confinement monitoring as the crime of conviction.  It is not
necessary to address that question in this case, however, since
petitioner was not convicted of a crime involving any of the
mismatched cross-references.