Opinion
No. 77-2585.
June 23, 1978.
D.Del., 67 F.R.D. 689.
AFFIRMED
In the case of a controlled substance in schedule I or II which is a narcotic drug, such person shall be sentenced to a term of imprisonment of not more than 15 years, a fine of not more than $25,000, or both. . . . Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a special parole term of at least 3 years in addition to such term of imprisonment . . ..
This section has been interpreted by several courts of appeals to permit a lifetime parole term. United States v. Jones, 540 F.2d 465, 468-69 (10th Cir. 1976), cert. denied, 429 U.S. 1101, 97 S.Ct. 1125, 51 L.Ed.2d 551 (1977); United States v. Rivera-Marquez, 519 F.2d 1227 (9th Cir.), cert. denied, 423 U.S. 949, 96 S.Ct. 369, 46 L.Ed.2d 285 (1975); United States v. Rich, 518 F.2d 980, 986-87 (8th Cir. 1975), cert. denied, 427 U.S. 907, 96 S.Ct. 3193, 49 L.Ed.2d 1200 (1976). We approve the reasoning of those courts and hold that section 841(b)(1)(A) permits the sentence imposed below. We also find that lifetime parole in the circumstances of this case does not constitute cruel and unusual punishment. See United States v. Rea, 532 F.2d 147 (9th Cir.), cert. denied, 429 U.S. 837, 97 S.Ct. 107, 50 L.Ed.2d 104 (1976); United States v. Rivera-Marquez, supra. We do not accept appellant's argument that the parole term is "tantamount to life imprisonment." Imprisonment as a result of parole revocation is only speculation at this time and does not present a ripe question for decision. United States v. Rea, supra, 532 F.2d at 149.
We will remand this case to the district court for two purposes. First, the court should supplement the record with a statement of reasons for the failure to grant a further continuance in response to defendant Walden's motions on June 13 and 14. Second, the court should examine Agent Mitchell's handwritten notes and draft report and make findings on whether these constitute "statements" which must be disclosed under the Jencks Act and, if so, whether the failure to disclose was harmless error. The court may in its discretion hold hearings and make further findings on these issues. The case shall then be returned to this court for our consideration.