Per Curiam. The appellant filed a motion, pursuant to 28 U.S.C. § 2255, claiming that when the district court sentenced him in 1987, the court may have incorrectly believed that he was parole-eligible and so may have imposed a sentence longer than it, otherwise, would have. The district court denied that motion.
The appellant does not press this claim on appeal. Rather, he raises new issues. We do not review claims not raised below. See, e.g., Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir. 1979). In any event, these new claims are without merit.
The appellant argues that the statute, pursuant to which he was indicted, 21 U.S.C. § 955a(a), was not in effect at the time of his offense, December 2, 1986. That is true. Section 955a(a) of Title 21 had been transferred to and superseded by 46 U.S.C. § 1903 on November 10, 1986. See United States v. Mazzaferro, 907 F.2d 251, 252-53 (1st Cir. 1990). This fact does not help the appellant, however. For much the same reasoning as explained in Mazzaferro, supra, this error in citation of the proper statute was harmless.
Appellant's second claim, also newly raised on appeal, fares no better. He argues that he was a small scale offender, convicted of possessing with intent to distribute 1,700 pounds of marijuana and, accordingly, is eligible for parole. His argument suffers an initial factual flaw. He was convicted of possessing with intent to distribute 17,000, not 1,700, pounds of marijuana. Moreover, the Anti-Drug Abuse Act of 1986, which proscribed eligibility for parole during the term of imprisonment imposed for an offense of this amount, became effective on October 27, 1986, prior to the appellant's offense. United States v. De Los Santos-Himitola, 924 F.2d 380, 381 (1st Cir. 1991); United States v. Garay, 921 F.2d 330, 333 (1st Cir. 1990) (per curiam), overruled on other grounds by Gozlon-Peretz v. United States, 112 L. Ed. 2d 919, 111 S. Ct. 840 (1991).1
Although we find no merit to the claims raised by the appellant, we direct our attention to one matter that he did not raise. In an order dated August 6, 1990, the district court, pursuant to a different § 2255 motion filed by the appellant, vacated the 5 year term of supervised release originally imposed at sentencing in 1987, and replaced it with a 5 year term of special parole. Recent caselaw, however, instructs us that supervised release was, and is, the authorized form of postconfinement monitoring for this appellant. Gozlon-Peretz v. United States, 112 L. Ed. 2d 919, 111 S. Ct. 840 (1991); Padilla Palacios v. United States, 932 F.2d 31, 33-34 (1st Cir. 1991) (applying the rationale of Gozlon-Peretz to the parallel provisions in 21 U.S.C. § 960). We, therefore, direct the district court to reinstate the supervised release term of 5 years as originally imposed. As the district court is merely reinstating the sentence as originally imposed in 1987, the district court may do so, even in the defendant's absence. See United States v. De Los Santos-Himitola, 924 F.2d at 382-83.
We affirm the judgment dated May 22, 1991, denying the motion filed pursuant to 28 U.S.C. § 2255, and remand with directions to issue a corrected sentencing order in conformity with this opinion.
Disposition
We affirm the judgment dated May 22, 1991, denying the motion filed pursuant to 28 U.S.C. § 2255, and remand with directions to issue a corrected sentencing order in conformity with this opinion.
1. In Padilla Palacios v. United States, 932 F.2d 31, 33 (1st Cir. 1991) (per curiam), we acknowledged that Gozlon-Peretz had overruled our decision in Garay (as well as similar decisions in other cases), insofar as Garay had held that special parole (rather than supervised release) was the applicable type of postconfinement monitoring for offenses committed in the interim period. Garay, nonetheless, remains good law with respect to its Conclusion that, upon its enactment on October 27, 1986, the ADAA proscribed eligibility for parole during the term of imprisonment imposed.