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                    [NOT FOR PUBLICATION]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)  &amp;  (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 &amp; '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-
