September 22, 1993    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                        

No. 93-1250

                     MICHAEL J. KINGSLEY,

                         Petitioner,

                              v.

                  UNITED STATES OF AMERICA,

                         Respondent.

                                        

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

        [Hon. Frank H. Freedman, U.S. District Judge]
                                                    

                                        

                            Before

                     Breyer, Chief Judge,
                                        
              Selya and Boudin, Circuit Judges.
                                              

                                        

   Michael J. Kingsley on brief pro se.
                      
   A.  John  Pappalardo,  United  States  Attorney,  and  Kevin
                                                               
O'Regan, Assistant United States Attorney, on brief for appellee.
     

                                        

                                        

                             -2-

     Per Curiam.  Petitioner  Michael Kingsley challenges the
               

legality  of special  parole  terms imposed  as  part of  his

sentence  for  multiple  drug violations.    He  argues that,

because such sanctions were abolished between the time of his

offenses  and the time of his  sentencing, the district court

should have applied the law in effect on the latter date.  We

disagree  and therefore affirm  the denial  of his  motion to

correct sentence under 28 U.S.C.    2255 and/or Fed. R. Crim.

P. 35(a). 

     From March 1977  to May 1985, petitioner was  the leader

of a twenty-three member organization engaged in distributing

cocaine and marijuana  in western Massachusetts.   In January

1987, he pled guilty to  22 separate offenses as follows: one

count  of conspiracy to distribute cocaine,  21 U.S.C.   846,

one count  of conspiracy  to distribute  marijuana, id.,  ten
                                                       

counts of  cocaine distribution,  21 U.S.C.    841(a),  three

counts   of  marijuana  distribution,   id.,  one   count  of
                                           

conducting a continuing criminal enterprise, 21 U.S.C.   848,

and  six  related  tax  offenses.    Sentencing  occurred  on

February  17,  1987.    At  the  government's  recommendation

pursuant to a plea bargain, the district court imposed twelve

ten-year prison terms (for the continuing criminal enterprise

offense  and each of the cocaine  offenses) and ten five-year

prison  terms (for each of  the marijuana and tax offenses)--

all to be served concurrently.   The court also imposed three

                             -3-

years  of  special parole  for  each  of  the eleven  cocaine

offenses (the conspiracy  count and  ten substantive  counts)

and  two  years of  special  parole  for  each of  the  three

substantive marijuana offenses.  

     In October  1992, petitioner  filed  the instant  motion

seeking to vacate the special parole terms.  From his reading

of various amendments to 21  U.S.C.   841(b) that occurred in

the  mid-1980s, he  argued  that  the  statute  in  its  1987

configuration imposed no type  of post-confinement monitoring

for the  offenses at issue  here.  He further  contended that

the district court was required to impose this allegedly more

"lenient" penalty provision, rather than the one in effect at

the time the offenses occurred.   The district court properly

rejected  this analysis.1  Contrary to petitioner's view, the

1987  version of    841(b) actually contained  more stringent

penalties, including enhanced  prison sentences and terms  of

supervised  release.  Applying  that provision  at sentencing

thus  would have  violated  the  ex post  facto  clause.   We
                                               

explain briefly.

     The  various  modifications  that     841(b)   underwent

between  1984  and  1987   have  been  exhaustively  detailed

elsewhere,  see, e.g.,  Gozlon-Peretz v.  United States,  498
                                                       

                    

1.  The  district court did modify one aspect of the judgment
sua sponte.   Pursuant to Bifulco v. United  States, 447 U.S.
                                                   
381 (1980),  it vacated the  special parole term  imposed for
the cocaine conspiracy count. 

                             -4-

U.S.  395, 399-403 (1991); Padilla Palacios v. United States,
                                                            

932  F.2d 31,  32-33  (1st Cir.  1991)  (per curiam);  United
                                                             

States  v. Ocasio  Figueroa, 898 F.2d  825, 826-28  (1st Cir.
                           

1990), cert. denied, 113 S. Ct. 1001 (1993); United States v.
                                                          

Ferryman, 897 F.2d 584, 586-88 (1st Cir.), cert.  denied, 498
                                                        

U.S. 830 (1990), and so need only be summarized  here.  Prior

to October 12,  1984,   841(b) mandated a  three-year term of

special parole for cocaine  offenses and a two-year term  for

marijuana offenses.  Between that date  and October 27, 1986,

an  anomalous  situation  existed.   The  statute  imposed no

special  parole term  for  large-scale offenses  (e.g., those
                                                      

involving one kilogram or more of cocaine), but retained such

sanctions  for  lesser   offenses.    Compare  21   U.S.C.   
                                             

841(b)(1)(A) (Supp.  1984) with id.    841(b)(1)(B)-(C); see,
                                                            

e.g., United  States v.  Santamaria, 788  F.2d 824, 829  (1st
                                   

Cir.  1986).   Finally,  it  is now  clear  that the  statute

requires  a term  of  supervised  release  for  all  offenses

occurring on or after October 27, 1986 (not November 1, 1987,

as  petitioner suggests).  See, e.g., Gozlon-Peretz, 498 U.S.
                                                   

at 409; United States v. Morris, 977 F.2d 677, 686  (1st Cir.
                               

1992), cert. denied, 113 S. Ct.  1588 (1993).  Both the  1984
                   

and  1986 amendments,  of course,  also  enhanced the  prison

terms prescribed by   841(b). 

     Defendant is therefore mistaken in maintaining  that the

statutory penalties existing  prior to October 12,  1984 were

                             -5-

more  stringent than  those existing  in 1987.   Had  he been

sentenced under  the latter,  he would  have been  exposed to

longer  terms of  imprisonment.2    And  he would  have  been

subject to periods  of supervised release at  least equal to,

and  (depending on the  quantity of drugs  involved) possibly

longer  than, the  earlier special  parole  terms--a fact  he

overlooks entirely.  It is thus clear that application of the

1987 penalties would  have been impermissible.   And, lastly,

petitioner's contention that  the circumstances  here are  so

ambiguous as to warrant invoking  the "rule of lenity" in his

favor is  well off the  mark.  See, e.g.,  Gozlon-Peretz, 498
                                                        

U.S. at 409-10; Ferryman, 897 F.2d at 591.3 
                        

                    

2.  Defendant   suggests    this   would   have    posed   no
constitutional  difficulties  in  light of  the  government's
sentencing  recommendations under  the  plea agreement.    He
ignores the fact that the  district court was not required to
accept those recommendations.

3.  While we  need not  address the issue,  we note  that the
second prong of petitioner's argument--that any  reduction in
criminal penalties must be applied retroactively, even absent
any  specific  provision  to  that  effect--appears   equally
problematic.  See generally United States v. Jacobs, 919 F.2d
                                                   
10 (3d Cir. 1990) (applying "saving statute," 1 U.S.C.   109,
to find change in drug offense classification, which occurred
between time  of  offense and  time of  sentencing and  which
would  have  rendered   defendant  eligible  for   probation,
inapplicable), cert. denied,  111 S. Ct. 1333  (1991); Lerner
                                                             
v. Gill,  751 F.2d  450, 456  (1st Cir.)  (rejecting argument
       
that  "a state  must  retroactively  afford  a  prisoner  the
benefits  of any less stringent legislation adopted after the
crime"), cert. denied, 472 U.S. 1010 (1985).  See also United
                                                             
States v.  Tarvers,  833  F.2d 1068,  1077  (1st  Cir.  1987)
                  
(upholding special parole term imposed under pre-1984 version
of   841(b), even though sentencing occurred in 1985).  

                             -6-

     The same reasoning applies to the two offenses here that

occurred  after  October   12,  1984:  count  14   (involving

distribution of cocaine  on October 29,  1984), and count  15

(involving possession of marijuana with intent to  distribute

on May 3, 1985).   The penalty provisions applicable to these

offenses,  21 U.S.C.    841(b)(1)(B)-(C)  (Supp.  1984), were

less stringent than  those in effect in 1987.   Moreover, the

1984 statute required special  parole in both instances.   Of

course, had count  14 involved a kilogram or  more of cocaine

and  thus  fallen  within  the  1984  version  of  subsection

(b)(1)(A) rather than (b)(1)(B), no special parole would have

been warranted with respect thereto.  Yet the district  court

specifically  determined that  this offense  was  governed by

subsection (b)(1)(B)  and petitioner has not  challenged this

finding on appeal.

     Affirmed.
              

                             -7-
