Wayne Pray v. Warden Ronald Holt Appeal From the United States District Court for the Middle…

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2622
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WAYNE PRAY,
Appellant
v.
WARDEN RONALD HOLT
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Civ. No. 3-08-cv-00018)
District Judge: Honorable Edwin M. Kosik
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Submitted Under Third Circuit L.A.R. 34.1(a)
March 2, 2009
Before: BARRY, WEIS and ROTH, Circuit Judges.
(Opinion Filed : July 8, 2009)
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OPINION
WEIS, Circuit Judge.
On October 16, 1989, defendant was convicted of multiple violations of the
narcotics laws. The docket sheets and indictment document the sentences imposed on the
various counts as follows:

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A. Count one, engaging in a criminal enterprise from January
1985 to June 1988 in violation of 21 U.S.C. § 848 -- life
imprisonment
B. Count two, conspiracy, 21 U.S.C. § 846, to distribute and
possess with the intent to distribute cocaine and marijuana
from January 1985 to June 1988, i.e., conspiracy to commit a
violation of 21 U.S.C. § 841(a)(1) -- life imprisonment
C. Count four, possession with the intent to distribute cocaine in
March 1987 in contravention of 21 U.S.C. § 841(a)(1) --
twenty-five years imprisonment to run concurrently with the
sentences imposed on counts one, two, five, and seven as well
as a three year period of supervised release
D. Count five, possession with the intent to distribute cocaine in
March 1987 in violation of § 841(a)(1) -- twenty-five years
incarceration running concurrent with the penalties received
on counts one, two, four, and seven as well as a three-year
period of supervised release to run concurrently to the
supervised release imposed on count four
E. Count six, possession with the intent to distribute cocaine in
June 1987 in breach of § 841(a)(1) -- twenty-five years
imprisonment to run consecutively to counts four and five but
concurrent to counts one, two, and seven, as well as a three
year term of supervised release running consecutive to the
supervised release imposed on counts four and five
F. Count seven, conspiracy, 21 U.S.C. § 963, to import cocaine
into the United States from December 1986 to June 1987, i.e.,
conspiracy to violate 21 U.S.C. §§ 952(a) and 960(a)(1) -- life
imprisonment
On direct appeal, the sentences were affirmed by this Court. United States
v. Pray, 975 F.2d 1552 (3d Cir. 1992).

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The effective date of the act was clarified in Lyons v. Mendez, 303 F.3d1
285, 292 (3d Cir. 2002).
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Defendant filed a petition for habeas corpus in January 2008, contending
that although he has been incarcerated for more than 20 years, he has never received a
parole hearing or a parole date. He sought an order compelling the United States Parole
Commission to place him within the appropriate parole guideline range. The District
Court denied the petition.
On appeal to this Court, defendant argues that the original section 235(b)(3)
of the Sentencing Reform Act applies to him, thus requiring the United States Parole
Commission to set a release date for him within the applicable parole guidelines. See
Pub. L. No. 98-473, 98 Stat. 1987, 2032 (1984) (“[t]he United States Parole Commission
shall set a release date, for an individual who will be in its jurisdiction the day before the
expiration of five years after the effective date[ ] of this Act, that is within the range that1
applies to the prisoner under the applicable parole guideline”).
Defendant relies on Lyons v. Mendez, 303 F.3d 285, 292 (3d Cir. 2002),
which holds that the original section 235(b)(3) applies to persons “who committed crimes
between October 12, 1984 and December 7, 1987 and who were scheduled to be in the
Parole Commission’s jurisdiction on November 1, 1992." He further asserts that he had
completed his criminal activity prior to November 1, 1987.

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Assuming arguendo that defendant had committed his crimes within the
time span discussed in Lyons and before November 1, 1987, the sentence imposed on
count one, engaging in a continuing criminal enterprise, is not subject to parole. See
United States v. Valenzuela, 646 F.2d 352, 354 (9th Cir. 1980) (parole is not available for
a life sentence under § 848); see also United States v. McCann, 835 F.2d 1184, 1185 (6th
Cir. 1987) (sentences imposed under § 848 “are to be without parole”); Gallardo v.
Quinlan, 874 F.2d 186, 187-88 (3d Cir. 1989) (explaining that individuals who violated §
848 prior to November 1, 1987, committed a non-parolable offense).
Nor can defendant obtain parole from the sentence he received on count
two, conspiracy to commit a violation of § 841(a)(1), because that is non-parolable. See
21 U.S.C. § 846 (1988) (“[a]ny person who . . . conspires to commit any offense defined
in this title is punishable by imprisonment . . . which may not exceed the maximum
punishment prescribed for the offense, the commission of which was the object of the . . .
conspiracy”); see also United States v. Giltner, 972 F.2d 1563, 1563-66 (11th Cir. 1992)
(sentence for conspiracy to violate § 841 non-parolable where part of the conspiracy
occurred after October 27, 1986, the date sentences imposed under § 841 became
ineligible for parole); Dyer v. United States, 23 F.3d 1424, 1425-26 (8th Cir. 1994)
(same).
Sentences at counts four, five, and six for possession with intent to deliver
are non-parolable. See 21 U.S.C. § 841(b)(1)(A)-(B) (1987) (“[n]o person sentenced

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under th[ese] subparagraph[s] shall be eligible for parole during the term of imprisonment
imposed therein”); see also United States v. Robles-Pantoja, 887 F.2d 1250, 1257 (5th
Cir. 1989) (the 1986 amendments to § 841(b)(1)(A)-(B) expressly eliminated the
possibility of parole).
Finally, the sentence imposed at count seven for conspiracy to breach,
among other things, § 960 is not subject to parole. See Giltner, 972 F.2d at 1563-66
(sentence for conspiracy to violate § 960 non-parolable where part of the conspiracy
occurred after October 27, 1986, the date on which sentences for violating § 960 became
ineligible for parole).
We can find no support for the defendant’s allegation that the petitioner in
Lyons was also serving a sentence imposed under § 841(b)(1)(A). The Lyons opinion is
irrelevant. Defendant is not serving a sentence from which he may be paroled, and his
contentions, therefore, lack merit.
Accordingly, the District Court properly analyzed the sentences imposed
upon defendant and correctly found that no relief was available to him. The Judgment of
the District Court will be affirmed.

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