Each was sentenced to one year in prison; the sentences were suspended, and each was placed on probation for three years on these counts. We granted the petition for writ of certiorari, 407 U.S. 908 (1972), in order to resolve the conflict between the First and Ninth Circuits, see United States v. Stephens, 449 F.2d 103 (CA9 1971).See also United States v. McGarr, 461 F.2d 1 (CA7 1972); United States v. Fiotto, 454 F.2d 252 (CA2 1972).
See also United States v. Caraballo, 334 F.Supp. 843 (S.D.N.Y. 1971). While the Ninth Circuit has decided otherwise, United States v. Stephens, 449 F.2d 103 (9 Cir. 1971), we believe that there are cogent reasons for adhering to our previous decisions in Fiotto and Singleton. 21 U.S.C. § 174 and 26 U.S.C. § 7237(d) (1964). If § 7237(d) did not apply, parole and probation would be available to Ross even though the provisions of the new Act did not apply to him.
1 U.S.C. § 109. The district judge, relying on a Ninth Circuit case, United States v. Stephens, 449 F.2d 103 (1971), held that notwithstanding these savings clauses, the 5-year minimum sentence provision of the repealed statute was no longer in effect. He sentenced one defendant to four years in prison; the other to three years.
See, e.g., Jones v. United States, 117 U.S.App.D.C. 169, 327 F.2d 867 (1963); United States v. Kirby, 176 F.2d 101 (CA2 1949); Lovely v. United States, 175 F.2d 312 (CA4 1949). The Court of Appeals, relying on statements in opinions of this Court that § 109 is intended to obviate "mere technical abatement[s]," see Hamm v. Rock Hill, 379 U.S. 306, 314 (1964), held that, since respondent's conviction and sentence would remain intact even if he were released on parole, the purposes of 1 U.S.C. § 109 would Page 661 not be served by applying it to save the no-parole provision of 26 U.S.C. § 7237 (d). 483 F.2d 656, 663; see United States v. Stephens, 449 F.2d 103, 105-106 (CA9 1971). This analysis, it seems to us, begs the relevant question.
Appellant was sentenced under the provisions of the old law, 26 U.S.C. §§ 4705(a), 7237(d), to two mandatory five-year concurrent prison terms. At the time of sentencing, the trial judge was faced with conflicting decisions from two courts of appeals: one holding that the sentencing procedures of the new Act applied to crimes committed before its effective date, United States v. Stephens, 449 F.2d 103 (9th Cir. 1971); the other holding that the sentencing provisions of the new Act applied only to crimes committed after the effective date of the Act, United States v. Fiotto, 454 F.2d 252 (2d Cir.), cert. denied, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117 (1972). Although the trial judge stated that if Stephens were the law, he would consider the imposition of a sentence less than the mandatory term, he indicated that he felt constrained to follow the interpretation of the Act found in the Fiotto case.
Prior to 1974, another Court of Appeals held that 1 U.S.C. § 109 does not apply to the repeal of a statute that rendered a defendant eligible for probation, reasoning that the saving statute was meant only to prevent abatement of prosecutions. See United States v. Stephens, 449 F.2d 103, 105 (9th Cir. 1971). We decline to follow that Court, in light of the Supreme Court's holding that 1 U.S.C. § 109 does encompass punishment.
The judge did not state that Bachner would be ineligible for parole. He did, however, before the hearing was concluded, say that Bachner would be ineligible for probation, although Bachner's attorney argued to the contrary and urged that the defendant could be sentenced under the new act and probation could be granted under a decision of the Ninth Circuit, which he did not further identify. The decision referred to was presumably United States v. Stephens, 449 F.2d 103 (9th Cir. 1971). At the hearing on sentencing, the court again asked the prosecutor "the minimum-maximum sentence," and the prosecutor answered as follows:
Bradley v. United States (1973) 410 U.S. 605, 611, n. 6, 93 S.Ct. 1151, 1156, 35 L.Ed.2d 528. It "in no way affects the prosecution of the case," United States v. Stephens (9th Cir. 1971) 449 F.2d 103, 105, and is in no respect a part of the "prosecution". Section 1103(a), confined as it is specifically to the concept of "prosecution", presents thus no bar to the right of the petitioners to qualify for consideration for parole under Section 4202 and cannot justify the arrant discrimination inherent in the position taken by the Board.
Accordingly, there is no basis, under the language of the savings provision of § 1103(a), for claiming an exception to the extinction of the prohibition of parole. United States v. McGarr, 461 F.2d 1 (C. A. 7 1972); United States v. Stephens, 449 F.2d 103 (C.A. 9, 1971). These rulings were not preceded by any application to the Board of Parole.
It noted that, "Parole arises after the end of the criminal prosecution, including imposition of sentence." United States v. Caldwell, 463 F.2d 590 (3d Cir. 1972), United States v. Fiotto, 454 F.2d 252 (2d Cir. 1972), and United States v. Stephens, 449 F.2d 103 (9th Cir. 1971), are inapposite here because they did not involve the effect of § 1103(a) on § 4202, the general parole statute; they involved, as did Bradley, decisions pertaining to sentencing. The only remaining issue is the effect of 1 U.S.C. § 109, which provides in relevant part: