Opinion · Court of Appeals for the Ninth Circuit

United States v. Michael Allen Rush

622 F.2d 1021

Type
Opinion
Court
Court of Appeals for the Ninth Circuit
Jurisdiction
Federal
Date
1980-07-07
Topic
antitrust

PER CURIAM. Michael Allen Rush pleaded guilty to conspiracy to possess a controlled substance with intent to distribute, in violation of 21 *1022 U.S.C. § 846. He was sentenced to two years in prison followed by a special parole term of five years. The only issue 1 on appeal is whether a special parole term may be imposed for a conviction of conspiracy to violate federal drug laws. Because of disagreement among the circuits, and the pend-ency of the issue before the Supreme Court in Bifulco v.

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2 opinions
UNITED STATES v. RUSH,622 F.2d 1021(9th Cir. 1980)
UNITED STATES OF AMERICA, APPELLEE, v. MICHAEL ALLEN RUSH, APPELLANT.
No. 79-1251.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 4, 1980.
Decided July 7, 1980.
Michael Allen Rush, Garden Grove, Cal., pro se.

Bruce R. Castetter, Asst. U.S. Atty. (on the brief), Michael H. Walsh, U.S. Atty., San Diego, Cal., for appellee.
Appeal from the United States District Court for the Southern District of California; Gordon Thompson, Jr., Judge.
Before GOODWIN and FERGUSON, Circuit Judges, and LUCAS,fn*District Judge.
PER CURIAM.
[1] Michael Allen Rush pleaded guilty to conspiracy to possess a controlled substance with intent to distribute, in violation ofPage 102221 U.S.C. § 846. He was sentenced to two years in prison followed by a special parole term of five years. The only issue1on appeal is whether a special parole term may be imposed for a conviction of conspiracy to violate federal drug laws. Because of disagreement among the circuits, and the pendency of the issue before the Supreme Court inBifulco v. United States,600 F.2d 407(2nd Cir.),cert. granted,444 U.S. 897, 100 S.Ct. 205, 62 L.Ed.2d 133 (1979), we deferred submission of this appeal until the Supreme Court rendered its decision inBifulco v. UnitedStates,___ U.S. ___, 100 S.Ct. 2247, 64 L.Ed.2d ___, 27 U.S.Cr.L. 3173 (1980).

[2] The Supreme Court has resolved the question in favor of the appellant. It follows that judgment must be vacated and the cause remanded for the entry of an appropriate judgment pursuant to the decision inBifulco v. United States, supra.

[3] Vacated and remanded.Page 1304
  1. The Honorable Malcolm M. Lucas, United States District Judge for the Central District of California, sitting by designation. ↩
  2. Rush filed a Fed.R.Crim.P. 35 motion to correct his sentence, asserting that the special parole term prescribed by21 U.S.C. § 841(b)(1)(B) could not be imposed for a conspiracy conviction. The appeal is from the order denying Rule 35 relief. ↩