IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 94-60481

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JORGE MARISIO-GONZALEZ,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Mississippi

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(February 17, 1995)

Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.

PER CURIAM:

Jorge Marisio-Gonzalez ("Gonzalez") appeals the denial of his

motion to correct illegal sentence under FED. R. CRIM. P. 35.

Finding no error, we affirm.

I.

Gonzalez was convicted of conspiracy to possess with intent to

distribute approximately 900 kilograms of cocaine, possession with

intent to distribute the same amount of cocaine, and interstate

travel in aid of racketeering. He was sentenced to a 168-month
1 Both of the notices issued by the Commission erroneously determined

that Gonzalez was eligible for parole on all or part of his sentence.

2

term of imprisonment on the conspiracy charge; a concurrent 120-

month term on the possession charge, followed by a five-year term

of supervised release; and five years of probation to run concurrently with his supervised release. Gonzalez's conviction was

affirmed on direct appeal. United States v. Ruiz, 987 F.2d 243

(5th Cir.), cert. denied, 114 S. Ct. 163 (1993).

The Parole Commission issued a notice that Gonzalez was

eligible for "presumptive parole" on January 25, 1996. In response

to Gonzalez's request for an administrative remedy, the Commission

subsequently notified him that he was not eligible for parole on

the sentence for conspiracy but only on the sentence for drug

possession.1 Gonzalez's administrative appeal of this decision was

denied.

Gonzalez then filed a motion for clarification of the judgment

imposing his sentence. The district court construed Gonzalez's

motion as one challenging his sentence under 28 U.S.C. § 2241 and

dismissed it for lack of jurisdiction.

Gonzalez next filed a motion to correct his sentence under

rule 35. The district court again denied his motion for lack of

jurisdiction for the same reasons. Gonzalez filed another rule 35

motion, challenging the imposition, and not the execution, of his

sentence. The court issued a memorandum opinion holding that

Gonzalez's entire sentence was a pre-guidelines sentence and was

without parole under the Anti-Drug Abuse Act ("ADAA"), which was in
3

effect at the time that the offenses were committed. The Commission subsequently notified Gonzalez that he was not eligible for

parole on any part of his sentence.

Gonzalez then filed the instant rule 35 motion, alleging that

(1) the denial of parole on his entire sentence is a denial of due

process, and (2) his counsel was ineffective for failing to file a

rule 35 motion within 120 days of the denial of his certiorari

petition. The district court denied his motion, holding that

Gonzalez's counsel was not ineffective but refusing to reconsider

its decision upholding the validity of Gonzalez's sentence.

II.

Gonzalez argues that the district court erred in holding that

his sentence for the drug conspiracy conviction was without parole

under the pre-guidelines law in effect at the time the offense was

committed. He contends that the district court improperly imposed

a more onerous sentence without parole after he sought clarification of the sentence.

Gonzalez was convicted of conspiracy to distribute 900

kilograms of cocaine in violation of 21 U.S.C. § 846. Section 846

then provided that the statutory penalty for a conspiracy under

that provision was the same imprisonment as that prescribed for the

object offense. Bifulco v. United States, 477 U.S. 381, 383

(1980). The "object offense" for which Gonzalez was convicted was

possession with intent to distribute cocaine in violation of

21 U.S.C. § 841.
4

Gonzalez's involvement in the drug conspiracy continued until

August 1987. At that time, the Sentencing Guidelines had not yet

been enacted. Section 841 of Title 21 was amended by section 1002

of the ADAA, effective on October 27, 1986. See Gozlon-Peretz v.

United States, 498 U.S. 395, 409 (1991); United States v. RoblesPantoja, 887 F.2d 1250, 1257-58 (5th Cir. 1989). Section 1002

changed § 841(b)(1)(A) to provide that "[n]o person sentenced under

this subparagraph shall be eligible for parole during the term of

imprisonment imposed therein." This version of § 841 remained in

effect until the guidelines became effective on November 1, 1987.

This court has not addressed the issue of whether the "no

parole" provision of § 841, as amended by the ADAA, applies to a

§ 846 drug conspiracy conviction that was committed during the time

that the ADAA was in effect. We have held, however, that the

supervised release provision of § 841, as amended by the ADAA,

applies to a § 846 conspiracy that began in early 1986 and

continued until July 1987. See United States v. Smith, 32 F.3d

194, 196 (5th Cir. 1994).

Other circuits have held that the ADAA's "no parole" provision

applies to § 846 drug conspiracies committed between October 27,

1986, and October 31, 1987. See Dyer v. United States, 23 F.3d

1424, 1425-26 (8th Cir. 1994); United States v. Giltner,

972 F.2d 1563, 1565-66 (11th Cir. 1992), cert. denied, 113 S. Ct.

2383 (1993). Because we have previously applied the ADAA's

supervised release provisions to conspiracies committed during the

period in question, and because other circuits have applied the
2 Gonzalez requests appointment of counsel for oral argument. The

interests of justice do not require oral argument or the appointment of

counsel in this case. See FED. R. APP. P. 34(a)(3).

5

ADAA's "no parole" provision to such conspiracies, we now hold that

the ADAA's "no parole" provision applies to Gonzalez's § 846

conspiracy.2

AFFIRMED.