UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DAVID LESLIE MIDDLEBROOKS, DEFENDANT-APPELLANT
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The court held that an intervening Supreme Court decision allowing a party to benefit from the new precedent even if their petition for rehearing was initially denied.
The appellant argued that a special parole term was unauthorized, and the court initially rejected this based on prior circuit precedent. However, the…
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PER CURIAM:
In United States v. Middlebrooks, 618 F. 2d 273 (5th Cir., 1980), we rejected the appellant’s argument that the trial court erred in imposing a three-year special parole term pursuant to 21 U.S.C.A. § 846. In doing so, we relied upon authority, Cantu v. United States, 598 F. 2d 471 (5th Cir. 1979), which appeared to dispose of the appellant’s contention that no special parole term was authorized by that section. The appellant timely filed a petition for rehearing, raising only the sufficiency of the evidence. Subsequent to the filing of the petition for rehearing, but during the time in which a petition could still be submitted, the Supreme Court decided Bilfulco v. United States, - U.S. -, 100 S.Ct. 2247, 65 L.Ed.2d-(1980). In Bilfulco, the Court held that a special parole term could not be imposed pursuant to 21 U.S.C.A. § 846. Cantu cannot stand in light of this decision.
On July 1, 1980, we denied the petition for rehearing. On July 3,1980, the appellant filed an amended petition for rehearing, calling our attention to the Bilfulco decision. Because Bilfulco was decided while the appellant’s case was pending before this court, it would be an overly technical reliance on the time requirements for filing a petition for rehearing to foreclose the appellant from the benefits of that decision. See Rule 40(a), F.R.A.P. (time for filing a petition for rehearing may be enlarged by the court). Accordingly, we vacate the special parole term imposed pursuant to the appellant’s conviction on Count One of the indictment.
The denial of the petition for rehearing is VACATED and the petition is GRANTED. The original panel opinion is MODIFIED to the extent that the special parole term imposed pursuant to 21 U.S.C.A. § 846 is VACATED. In all other respects, the original panel opinion is AFFIRMED.1
. Because of the intervening decision of the Supreme Court in Bilfulco, we express no opinion as to its applicability in any other context. See, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, 902-03 (1956) (Frankfurter, J„ concurring).
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United States v. Wilson, 657 F.2d 755 (5th Cir. 1981)
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United States v. Perry, 643 F.2d 38 (2d Cir. 1981)
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United States v. Watson, 669 F.2d 1374 (11th Cir. 1982)
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Griffin v. Illinois, 351 U.S. 12 (U.S. 1956)
- Bifulco v. United States, 447 U.S. 381 (U.S. 1980)
- United States v. Middlebrooks, 618 F.2d 273 (5th Cir. 1980)
- Cantu v. United States, 598 F.2d 471 (5th Cir. 1979)