* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-51604

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

BEN LEE BASEY

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:85-CR-116-ALL

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Ben Lee Basey, federal prisoner # 34146-080, was charged by indictment

with conspiracy to possess with intent to distribute more than 50 kilograms of

marijuana (Count 1) and possession with intent to distribute more than 50

kilograms of marijuana (Count 2), in violation of 21 U.S.C. § 841. The

Government filed a notice of its intention to seek an enhanced sentence based

on Basey’s 1984 federal conviction for possession of a controlled substance with

intent to distribute. In March 1986, the jury found Basey guilty. In April 1986,

United States Court of Appeals

Fifth Circuit

F I L E D

April 17, 2008

Charles R. Fulbruge III

Clerk
No. 06-51604

2

the District Court sentenced Basey to consecutive prison terms of 25 years on

Count 1 and 15 years on Count 2, as well as a special parole term of life. We

affirmed his conviction on appeal and also affirmed the subsequent denial of his

28 U.S.C. § 2255 motion. In 2004, Basey filed a motion to correct an illegal

sentence pursuant to Rule 35 ofthe Federal Rules of Criminal Procedure raising

various challenges to his sentence. The District Court denied it on the merits.

We affirm.

Basey first contends that the district court was not authorized to impose

a special parole term at the time of his sentencing in April 1986. Basey is

correct that, pursuant to statutory amendments in 1984, there was no special

parole term authorized for offenses under 21 U.S.C. § 841(b)(1)(A). However, as

the Government correctly points out, Basey was convicted of offenses involving

marijuana, a non-narcotic controlled substance that fell within the sentencing

provisions of 21 U.S.C. § 841(b)(1)(B), not 21 U.S.C. § 841(b)(1)(A). Unlike

Section 841(b)(1)(A), Section 841(b)(1)(B) retained mandatory special parole

terms at the time of Basey’s sentencing. See 21 U.S.C. § 841(b)(1)(B), (C) (Supp.

II 1984); Gozlon-Peretz v. United States, 498 U.S. 395, 399-400 (1991).

Accordingly, Basey’s special parole term was authorized, and Basey’s sentence

was not illegal. See id.

Basey next asserts that the district court failed to admonish him regarding

the 21 U.S.C. § 851(a) notice of intent to seek an enhancement based on a prior

conviction, as required under § 851(b). However, Basey did not object to the lack

of notice. Rather, he filed a response in which he admitted the allegations

regarding the prior conviction. He has not shown that he would have been able

to raise any meritorious objections to the conviction had the district court

complied with § 851(b). Therefore, any error regarding § 851(b) does not require

reversal. See United States v. Garcia, 954 F.2d 273, 276-78 (5th Cir. 1992).

Basey also challenges various purported failures by the District Court to

comply with Federal Rule of Criminal Procedure 32. These challenges go to the
No. 06-51604

3

manner of the sentence imposed and not to the legality of the sentence; thus,

they arise under Rule 35(b), not Rule 35(a). See FED. R. CRIM. P. 35(b) (1985);

United States v. Velasquez, 748 F.2d 972, 974 (5th Cir. 1984); see also Hill v.

United States, 368 U.S. 424, 430 (1962). As such, the claims of violations of Rule

32 were subject to a time limit of 120 days from the date of sentencing, the

appeals court’s mandate, or order ofthe Supreme Court denying relief. See FED.

R. CRIM. P. 35(b) (1985). As the current motion was filed long after the 120-day

limit expired, Basey’s claims are barred. See United States v. Cevallos, 538 F.2d

1122, 1127-28 (5th Cir. 1976). 

Finally, Basey contends that his counsel rendered ineffective assistance

in various ways, rendering his sentence illegal. As a threshold matter, it does

not appear that any of Basey’s claims of ineffective assistance implicate the

legality of his sentence for purpose of Rule 35(a), which looks to whether the

sentence was authorized by law or statute or was otherwise constitutionally

valid. See Hill, 368 U.S. at 430. We need not decide this question, however,

because even if such claims may be raised via a Rule 35(a) motion, Basey’s

arguments fail. 

We previously rejected Basey’s claim that counsel rendered ineffective

assistance due to a conflict of interest when we affirmed denial of his § 2255

motion in 1991. We will not revisit that settled issue. Basey’s remaining claims

that counsel failed to raise various objections at sentencing and to advise him

regarding § 851 are conclusional and fail to demonstrate ineffective assistance.

See Strickland v. Washington, 466 U.S. 668, 687 (1984).

For the foregoing reasons, the judgment of the district court is

AFFIRMED.