USCA1 Opinion
September 24, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1364
UNITED STATES,
Appellee,
v.
EFRIAM NATANEL,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Boudin, Circuit Judges.
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Efriam Natanel on brief pro se.
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A. John Pappalardo, United States Attorney, and Jonathan Chiel,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Defendant Efriam Natanel appeals from the
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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
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302 (1st Cir. 1991) (affirming conviction on direct appeal),
cert. denied, 112 S. Ct. 986 (1992).1 The offense occurred
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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
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1. Our reference there to the conviction having occurred in
1990, see 938 F.2d at 308-09, is in error.
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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,
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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
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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
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2. We note that defendant's attorney did recognize that a
period of supervised release would be "appropriate." Sent.
Tr. at 6.
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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
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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
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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.
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conspiring in 1985 to commit a drug offense, in violation of
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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
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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
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U.S. 395 (1991); United States v. Morris, 977 F.2d 677, 686
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(1st Cir. 1992), cert. denied, 113 S. Ct. 1588 (1993); United
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States v. Ocasio Figueroa, 898 F.2d 825, 827-28 (1st Cir.
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1990), cert. denied, 113 S. Ct. 1001 (1993). He suggests,
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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
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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
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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.
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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,
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e.g., United States v. Ferryman, 897 F.2d 584, 586-88 (1st
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Cir.) (recounting statutory changes), cert. denied, 498 U.S.
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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).
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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
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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
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parole under preexisting law. Id. 841(b)(1)(A); see, e.g.,
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United States v. Santamaria, 788 F.2d 824, 829 (1st Cir.
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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
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Cir. 1989) (per curiam) (supervised release applicable),
cert. denied, 493 U.S. 1060 (1990) with United States v.
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Levario, 877 F.2d 1483, 1487-89 (10th Cir. 1989) (contra).7
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The lower courts in this circuit were likewise divided.
Compare United States v. Chica, 707 F. Supp. 84, 85-86
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(D.R.I. 1989) with Hernandez Rivera v. United States, 719 F.
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6. We are puzzled by the government's concession, see Brief
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at 6 n.5, that the supervised release period here could have
been invalidated between the time of our Ferryman decision in
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February 1990 and the Supreme Court's decision in Gozlon-
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Peretz one year later. In Ferryman, where we held that
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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
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month later, we ruled that such offenses in fact were subject
to supervised release. See Ocasio Figueroa, 898 F.2d at 827-
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28.
7. As noted in United States v. Gozlon-Peretz, 894 F.2d
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1402, 1404-05 (3d Cir. 1990), aff'd, 498 U.S. 395 (1991), a
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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.
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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
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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
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States v. Sasser, 974 F.2d 1544, 1561-62 (10th Cir. 1992)
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(collecting cases), cert. denied, 113 S. Ct. 1063 (1993). In
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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, ___
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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.
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Strozier, 940 F.2d 985, 987 n.2 (6th Cir. 1991) (same where
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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.,
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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."
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Corey, supra, slip op. at 5 ("court may correct the error ...
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sua sponte"); see also United States v. De Los Santos-
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Himitola, 924 F.2d 380, 382-83 (1st Cir. 1991) (defendant's
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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
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Practice and Procedure: Criminal 2d 722, at 16 (1982 & '93
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Supp.), our analysis in De Los Santos-Himitola confirms it is
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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
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9. United States v. Cook, 890 F.2d 672, 675 (4th Cir. 1989),
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upon which defendant relies, did not involve a clerical error
subject to correction under Rule 36 and is thus inapposite.
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v. Marquez, 506 F.2d 620, 621 (2d Cir. 1974) (five years).
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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.),
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cert. denied, 439 U.S. 933 (1978), in which we noted that the
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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
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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.
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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
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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
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therefore inapposite.
Affirmed.
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579 F.2d at 101.
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