
USCA1 Opinion

	




          September 24, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1364                                     UNITED STATES,                                      Appellee,                                          v.                                   EFRIAM NATANEL,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Efriam Natanel on brief pro se.            ______________            A. John  Pappalardo, United States  Attorney, and Jonathan  Chiel,            ___________________                               _______________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                 Per Curiam.   Defendant Efriam Natanel  appeals from the                 __________            grant  of a  motion under Fed.  R. Crim.  P. 36  to correct a            clerical mistake in the judgment.  The district court amended            the judgment  to include  a  four-year period  of  supervised            release that, according to the government, had been  verbally            imposed by  the sentencing  judge  but inadvertently  omitted            from the written judgment.  Defendant argues that it was not,            in fact, the judge's intention to impose such a sanction.  He            also contends that various procedural irregularities rendered            the  court's action here otherwise improper.  We find each of            these arguments without merit and therefore affirm.                 On  June 1, 1989, defendant  was convicted by  a jury of            distributing more  than  500  grams  of  cocaine  to  another            individual,  in   violation  of   21  U.S.C.       841(a)(1),            841(b)(1)(B)(ii)(II).  See United States v. Natanel, 938 F.2d                                   ___ _____________    _______            302 (1st Cir. 1991) (affirming conviction on direct  appeal),            cert. denied, 112 S.  Ct. 986 (1992).1  The  offense occurred            ____________            in  May 1987.   At  sentencing on  September 15,  1989, Judge            McNaught imposed  a six-year prison  term, a $20,000  fine, a            $50 special assessment,  and a four-year  term of  supervised            release.   Yet the  written judgment, dated  October 2, 1989,            contained no  reference to the period  of supervised release.            In November 1992, the government filed the instant motion  to            correct the judgment.   Judge McNaught having  retired in the            interim, another district court judge received  and summarily            granted the  motion  without  calling  for  a  response  from                                            ____________________            1.  Our reference there to  the conviction having occurred in            1990, see 938 F.2d at 308-09, is in error.                  ___            defendant; the judgment  was accordingly  amended to  reflect            the  term  of supervised  release.    Defendant submitted  an            opposition, which arrived after the court's order, and then a            motion for reconsideration, which was summarily denied.  This            appeal followed.                                            I.                 It is clear  that Judge McNaught intended to impose, and            did  impose, a  term  of supervised  release at  sentencing--            despite  an  initial  pronouncement  to the  contrary.    The            confusion  appears  to have  stemmed from  the fact  that the            government, when  first recommending  a  sentence, failed  to            mention this  sanction.2  See  Sent. Tr.  at 2.   The  court,                                      ___            stating that  it would "not go beyond  the recommendations of            the prosecutor," therefore announced  that "there will not be            a period of supervised release."  Id. at 18.   The government                                              ___            immediately   revised  its  recommendation  and  argued  that            supervised   release  was   mandatory   under  21   U.S.C.               841(b)(1)(B).  The court, acknowledging a lack of familiarity            with such  requirement, eventually  accepted this view  after            consulting the  statute and  explicitly included  a four-year                                            ____________________            2.  We note  that defendant's  attorney did recognize  that a            period of  supervised release would be  "appropriate."  Sent.            Tr. at 6.                                         -3-            term  of  supervised  release  in   the  sentence  thereafter            imposed.3                 We likewise think it clear that the lack of reference to            supervised  release  in  the  written  judgment  was  due  to            clerical  error.   Defendant  contends that,  far from  being            inadvertent, this  change reflected a purposeful  decision on            the  court's  part--i.e.,  that   the  court  decided,  after            reexamining the issue during the  intervening seventeen days,            to return to its  initial inclination that supervised release            was unwarranted.   Yet the  court provided  no indication  of            having done  any such thing.  It would be unusual, to say the            least, for a court  to revise a sentence sua  sponte, without                                                     ___________            notice  or  explanation.   Moreover,  defendant's two-pronged            attempt to buttress his speculation in this regard is wide of            the mark.                   First,  defendant notes that  Judge McNaught  imposed no            term   of  supervised   release   when  later   sentencing  a            codefendant  named Shlomo Levy.  This fact, however, is of no            relevance.    Unlike  defendant,   Levy  was  sentenced   for                                            ____________________            3.  Judge McNaught orally pronounced sentence as follows:                  Efriam Natanel,  as to  Count 18 of  the indictment                 ..., the court hereby orders that you be imprisoned                 for a period of six years, plus a four-year  period                 of  supervised  release   upon  your  release  from                 incarceration.  The court further imposes a fine in                 the amount of $20,000  plus a special assessment of                 $50.            Sent. Tr. at 20.                                         -4-            conspiring  in 1985 to commit a drug offense, in violation of            __________            21 U.S.C.   846.   And it has been clear  since 1980 that the            applicable version of    846 did not contemplate any  type of            post-confinement  monitoring  (either  supervised release  or            special parole).   See, e.g.,  Bifulco v. United  States, 447                               ___  ____   _______    ______________            U.S. 381 (1980).4                  Second, defendant points to the muddled state of the law            in September 1989 to infer that Judge McNaught likely changed            his mind.  He concedes that subsequent caselaw has vindicated            the  government's  position   that  supervised  release   was            mandatory.5   See, e.g., Gozlon-Peretz v.  United States, 498                          ___  ____  _____________     _____________            U.S. 395 (1991); United  States v. Morris, 977 F.2d  677, 686                             ______________    ______            (1st Cir. 1992), cert. denied, 113 S. Ct. 1588 (1993); United                             ____________                          ______            States v.  Ocasio Figueroa,  898 F.2d  825, 827-28  (1st Cir.            ______     _______________            1990),  cert. denied, 113 S.  Ct. 1001 (1993).   He suggests,                    ____________            however,  that the prevailing view  at the time of sentencing            was to  the contrary--and that Judge  McNaught likely revised            the judgment to comport  with that view.   We agree that  the            various amendments to 21  U.S.C.   841(b) were not a model of            clarity.   In  particular,  we agree  that,  at the  time  of                                            ____________________            4.  In  an  amendment  not  affecting  Levy's  case, Congress            revised    846 in November  1988 to permit  the imposition of            supervised release.            5.  Although the propriety of  supervised release is thus not            in dispute,  the question of whether  Judge McNaught intended                                                                 ________            to impose  such a sanction  remains relevant  to the  various            procedural  arguments advanced by  defendant--such as whether            the government properly proceeded by way of Rule 36.                                         -5-            sentencing, it was unsettled whether that  aspect of the 1986            amendments requiring the imposition of supervised release was            to take effect on October 27, 1986 or November 1, 1987.  See,                                                                     ___            e.g., United States  v. Ferryman, 897  F.2d 584, 586-88  (1st            ____  _____________     ________            Cir.) (recounting  statutory changes), cert. denied, 498 U.S.                                                   ____________            830 (1990).   Yet this circumstance  avails defendant little.            We explain briefly.                 The indictment here charged defendant  with distributing            in  excess of 500  grams of cocaine.   If the amount involved            was  less than  one  kilogram, defendant's  argument in  this            regard  would fail entirely.   Prior to  the 1986 amendments,            such an  offense was  subject to  a mandatory  special parole            term.     See   21  U.S.C.      841(b)(1)(B)   (Supp.  1985).                      ___            Consequently, the  choice faced by Judge  McNaught would have            been  between  special  parole  and  supervised  release--not            between   the   latter  sanction   and   no  post-confinement            monitoring at all.                   Yet the  evidence at trial showed, see Natanel, 938 F.2d                                                    ___ _______            at 312-13, and the government at  sentencing argued, that one            kilogram of  cocaine was  involved.  This  muddies the  water            slightly,  for such  an offense  was not  subject to  special                                                 ___            parole under preexisting law.  Id.   841(b)(1)(A); see, e.g.,                                           ___                 ___  ____            United  States v.  Santamaria, 788  F.2d 824,  829 (1st  Cir.            ______________     __________                                         -6-            1986).6    Yet  defendant's  argument  remains  unconvincing.            Contrary to his  suggestion, it was not the  predominant view            in  September 1989  that any  such offense  occurring in  the            "hiatus  period" was exempt from post-confinement monitoring.            Only a few  circuit courts  had addressed the  issue by  that            time  with specific reference to an  offense that fell within            the  purview  of former  subsection  (b)(1)(A)  and thus  was            exempt  from  special parole.    Their  conclusions differed.            Compare United  States v. Torres,  880 F.2d 113,  114-15 (9th            _______ ______________    ______            Cir.  1989) (per  curiam)  (supervised  release  applicable),            cert.  denied, 493  U.S. 1060  (1990)  with United  States v.            _____________                          ____ ______________            Levario, 877  F.2d 1483, 1487-89 (10th  Cir. 1989) (contra).7            _______            The  lower  courts in  this  circuit  were likewise  divided.            Compare  United  States v.  Chica,  707  F. Supp.  84,  85-86            _______  ______________     _____            (D.R.I. 1989) with Hernandez Rivera v. United States,  719 F.                          ____ ________________    _____________                                            ____________________            6.  We are puzzled by  the government's concession, see Brief                                                                ___            at  6 n.5, that the supervised release period here could have            been invalidated between the time of our Ferryman decision in                                                     ________            February  1990 and  the Supreme  Court's decision  in Gozlon-                                                                  _______            Peretz  one  year later.   In  Ferryman,  where we  held that            ______                         ________            special  parole  remained applicable  to the  "hiatus period"            offenses, we expressly withheld any view as to those offenses            subject to former (b)(1)(A).   See 897 F.2d at 589 n.4.   One                                           ___            month later, we ruled that such offenses in fact were subject            to supervised release.  See Ocasio Figueroa, 898 F.2d at 827-                                    ___ _______________            28.            7.  As  noted in  United  States v.  Gozlon-Peretz, 894  F.2d                              ______________     _____________            1402, 1404-05 (3d Cir.  1990), aff'd, 498 U.S. 395  (1991), a                                           _____            number   of  other  cases   that  found   supervised  release            inapplicable  involved  offenses  apparently   within  former            subsections  (b)(1)(B)  &  (C),  such  that  special   parole            remained available.                                         -7-            Supp. 65, 66  (D.P.R. 1989).   This mottled milieu  obviously            would  not  have  persuaded  Judge  McNaught  to  revise  the            judgment  sub  silentio.   We  conclude  that an  inadvertent                      _____________            omission, rather than a deliberate deletion, occurred here.                                         II.                 Given this conclusion,  defendant's remaining  arguments            can be readily dispatched.   It is clear that  correcting the            written judgment was appropriate  here.  Where an unambiguous            oral  sentence pronounced  by  the court  conflicts with  the            written  judgment, the  former controls.   See,  e.g., United                                                       ___   ____  ______            States v.  Sasser, 974  F.2d 1544, 1561-62  (10th Cir.  1992)            ______     ______            (collecting cases), cert. denied, 113 S. Ct. 1063 (1993).  In                                ____________            addition,  Rule  36--not  former  Rule  35(a),  as  defendant            argues--provides  the proper  vehicle for  correcting such  a            clerical  error.8   See,  e.g., United  States v.  Corey, ___                                ___   ____  ______________     _____            F.2d ___, No.  92-1223 (10th Cir.  1993) (Rule 36  correction            appropriate where judgment should have imposed three,  rather            than  five, years  of supervised  release); United  States v.                                                        ______________            Strozier, 940 F.2d 985,  987 n.2 (6th Cir. 1991)  (same where            ________            judgment omitted term of supervised release).                   It  was also  unnecessary that  defendant be  physically            present at the time  the judgment was corrected.   See, e.g.,                                                               ___  ____                                            ____________________            8.  Rule 36 reads: "Clerical mistakes in judgments, orders or            other  parts of the record  and errors in  the record arising            from oversight or omission  may be corrected by the  court at            any time and after such notice, if any, as the court enters."                                         -8-            Corey, supra, slip op. at 5 ("court may correct the error ...            _____  _____            sua  sponte");  see also  United  States  v.  De Los  Santos-                            ________  ______________      _______________            Himitola, 924  F.2d 380, 382-83 (1st  Cir. 1991) (defendant's            ________            presence not  required where  sentence  amended under  former            Rule 35(a)  to conform to  originally imposed sentence).   In            fact,  the language  of  Rule 36  leaves  it to  the  court's            discretion whether even to provide notice to the parties that            a clerical  error  is being  corrected.   Although  having  a            defendant  present  when a  judgment  is  corrected has  been            described  as the  "better practice,"  3A C.  Wright, Federal                                                                  _______            Practice and Procedure: Criminal 2d    722, at 16 (1982 & '93            ___________________________________            Supp.), our analysis in De Los Santos-Himitola confirms it is                                    ______________________            not a  compulsory practice.  Since the  corrective order here            did not  enhance defendant's sentence but  simply revised the            judgment  to  reflect  the  sentence as  originally  imposed,            defendant's presence was unnecessary.9                   Nor  is relief precluded by the fact that the motion was            filed over three years after entry of judgment (and some four            months, according  to defendant, before his scheduled release            from prison).  Rule  36 permits the correction of  a clerical            error  "at any time."  While the government has not explained            its  failure  to act  earlier,  courts have  granted  Rule 36            relief after even lengthier delays.  See, e.g., United States                                                 ___  ____  _____________                                            ____________________            9.  United States v. Cook, 890 F.2d 672, 675 (4th Cir. 1989),                _____________    ____            upon which defendant relies, did not involve a clerical error            subject to correction under Rule 36 and is thus inapposite.                                         -9-            v.  Marquez, 506 F.2d 620,  621 (2d Cir.  1974) (five years).                _______            Defendant  contends that relief  should nonetheless be barred            because  the  government  purposefully delayed  acting  until            after  Judge McNaught's  retirement.   In support,  he argues            that our opinion  on direct appeal alerted  the government to            the fact that the judgment contained no mention of supervised            release.  To the contrary, we there made no reference to  the            issue.10   And  no other  evidence  of deliberate  delay  has            been adduced.                   Finally,  defendant  argues  in  a  similar  vein   that            correction of the judgment  at this late date so  trenches on            his settled expectations as to violate due process.  Reliance            is  placed on  Breest v.  Helgemoe, 579  F.2d 95  (1st Cir.),                           ______     ________            cert. denied, 439 U.S. 933 (1978), in which we noted that the            ____________            power  of a  court  to correct  a  sentence to  comport  with            statutory requirements  might  be subject  to  some  temporal            limit.11  Yet it  cannot be said that defendant here  had any                                            ____________________            10.  Defendant  apparently  deems  significant our  statement            that he  "was subsequently sentenced  to six years  in prison            and fined  $20,000."    938 F.2d  at  306.   Yet  his  appeal            involved no challenge  to any  aspect of his  sentence.   The            fact  that we did not mention his supervised release term (or            his $50 special assessment) is thus understandable.             11.  We stated:                  After a substantial period  of time,... it might be                 fundamentally unfair,  and  thus violative  of  due                 process,  for  a court  to  alter  even an  illegal                 sentence  in a  way which  frustrates a  prisoner's                 expectations by postponing  his parole  eligibility                 or release date far beyond that originally set.                                         -10-            reasonable  expectation  that he  was exempt  from supervised            release.  The fact  that Judge McNaught unambiguously imposed            such sanction, the fact that our Ocasio Figueroa decision six                                             _______________            months  later confirmed  the propriety of  doing so,  and the            fact  that  such  a  sanction  is  statutorily  mandated  all            militate against such a  conclusion.  Moreover, the corrected            judgment here did not  postpone defendant's release date, but            simply  confirmed  the  fact  that  he  would be  subject  to            supervision  following  his release.    The  Breest dicta  is                         _________                       ______            therefore inapposite.                 Affirmed.                 _________                                            ____________________            579 F.2d at 101.                                         -11-
