It must be noted that the requirement is for "special parole", not for probation. If the statute called for probation to follow imprisonment, 18 U.S.C. § 3651 would limit the period of probation to five years. This cannot have been the intent of Congress, since a second offender must be put on at least double the applicable minimum of 2 or 3 years of special parole, and a distributor to a minor must be sentenced to triple those minimums. And if he violates parole, the prisoner must serve the special parole term, Roberts, supra.
Even when a youth offender is sentenced to an indefinite term under 18 U.S.C. § 5010(b), there are standards for both conditional and unconditional release specified in 18 U.S.C. § 5017(c).
These being the circumstances, there is no possible way in which a trial court can establish that a defendant subject to a special parole term understands the consequences of his plea. Nor does a court, at plea, have reliably available all the information that will control the minimum. This, in turn, would make it impossible to accept a plea in such cases.
The result is that the provision for mandatory special parole is unenforceable as in conflict with paramount law. Every defendant has the right to tender a plea and to have that plea accepted if the requisite findings can be made. Since the findings cannot be made, the provision is necessarily unenforceable.
The next question is whether the provision is severable. There cannot be any doubt that it is. The present statute was enacted, in part, to meet widespread criticism of the mandatory minimum jail sentences of the prior law which it replaced, and Congress obviously included the special parole clause in substitution for the minimum jail sentence. It hardly intended that the serious offenses covered by the new law should go wholly unpunished.
The Congress can, of course, easily correct the defect if it wishes, by stating some particular maximum limit on any single special parole term (such as double the minimum), and on the aggregate of all such terms (such as the remaining life expectancy of the defendant after expiration of all custodial sentences).
Finally, the court finds as a fact that Moore was both advised and aware of the mandatory special parole provision. The evidence at the hearing, as well as the records and files show this beyond question.
While Moore's attorney, who appeared at plea and at sentence could not explicitly recall when he told Moore about this provision, he was certain he had explained it because it is spelled out in the very section of the act that Moore was charged with. He told him it applied only if there were a jail sentence. His certainty is confirmed by his testimony that on sentence day, while waiting to be reached, two other sentences involving the mandatory special parole provision were imposed, and the attorney does explicitly recall nudging Moore and reminding him that this was the provision they had talked about. The minutes of the court on that date (July 27, 1973, Exh. G-1) confirm that the two others were so sentenced (Michael Hallock and Thomas Bertsch, both on Cr. No. 429-72).
Moore's testimony to the contrary is not worthy of belief, and the court does not believe him. His explanation that he though the 3 years of special parole meant that he would be paroled in 3 years is not credible. First, he would be eligible for parole after 3 years and 4 months (on a 10 year sentence) in any event, 18 U.S.C. § 4202. Second, as the sentence transcript shows, Moore was sentenced for "a term of ten years to be followed by three years special parole" (emphasis added). This is the expression invariably used by the court, and Moore heard it twice before he heard it on his own sentence.
Beyond that, Moore twice applied for reduction of sentence under F.R.Cr.P. 35 (before the present motion) and never made any mention of or complaint about the 3 years of special parole. The court finds that Moore was in fact fully aware of and fully understood the special parole aspect, (to the extent it can be) but was quite unhappy about the 10 years, which he cannot challenge.
Accordingly, from what has been decided, Moore cannot withdraw his plea. But, since the provision has been found unenforceable, it follows that the sentence imposed was necessarily illegal to the extent that it included the 3 year special parole. Under F.R.Crim.P. 35, that sentence can be corrected at any time, and under 28 U.S.C. § 2255, the presence of Moore for the correction of sentence is not required.
A corrected judgment conforming to this opinion is entered at the same time as this opinion.