United States v. Brown ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-7860
HOWARD JEFF BROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-92-88)
Submitted: May 29, 1998
Decided: June 22, 1998
Before LUTTIG and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Howard Jeff Brown, Appellant Pro Se. Charles Dee Griffith, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Vir-
ginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Howard Jeff Brown appeals the district court's order denying his
Motion to Correct District Court Error in Imposing a New Term of
Supervised Release. Finding that the district court's application of 18
U.S.C. § 3583(h) (1994) to Brown did not violate the Ex Post Facto
Clause, we affirm the decision of the district court.
Brown pleaded guilty to conspiracy to distribute and to possess
with intent to distribute over five kilograms of cocaine and over fifty
grams of crack cocaine, in violation of 21 U.S.C§ 846 (1994) (Class
A felony). In December 1992, the court sentenced him to seventy-two
months' imprisonment, awarded him credit for forty-seven months
already served, and imposed a five-year term of supervised release,
which commenced on July 22, 1994. In May 1995, the court found
that Brown had violated the terms of his supervised release and there-
fore revoked the original term of supervised release and ordered him
to serve twenty-four months' imprisonment, followed by a three-year
term of supervised release.
Brown filed a Motion to Correct District Court Error in Imposing
a New Term of Supervised Release, Not Authorized by Statute. The
district court denied the motion, finding that the amendment to 18
U.S.C. § 3583(h) authorized the court to reimpose supervised release
after revocation of the original term of supervised release. Brown
timely appeals, contending that the district court did not have the
authority to impose a new term of supervised release after the revoca-
tion of his original term and that application of§ 3583(h) to his sen-
tence violates the Ex Post Facto Clause.
A law violates the Ex Post Facto Clause if it is (1) retrospective
and (2) disadvantages the offender by altering the definition of the
criminal conduct or increasing the punishment for the crime. Brown
does not claim the new law alters the definition of the crime. Thus,
Brown's sentence can only violate the Ex Post Facto Clause if it
increases the penalty he could have received for his crimes. We find
that the district court's application of the amendment to § 3583(h) to
Brown did not violate the Ex Post Facto Clause. The amendment
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authorizing the reimposition of a term of supervised release after a
revocation of the original term and an imposition of a term of impris-
onment did not increase the punishment that Brown could have
received for his crime and therefore did not disadvantage him. See
United States v. Lominac, No. 96-4282, 1998 WL 230576, at 6, 10 n.9
(4th Cir. May 11, 1998).
Because Brown was convicted of a Class A felony under the law
prior to § 3583(h), Brown could have been sentenced to up to five
years of imprisonment for violating his supervised release terms. 18
U.S.C. § 3583(e)(3). After § 3583(h)'s enactment, Brown's sentence
for violating his supervised release could have been composed of
imprisonment or supervised release, but the two combined could not
have exceeded five years. 18 U.S.C. § 3583(h). Since the amount of
time Brown could have been sentenced to under § 3583(e)(3) was not
increased by § 3583(h), Brown was not disadvantaged by the law.
Accordingly, we affirm the decision of the district court. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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