                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 March 20, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-40729
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JESUS HERNANDEZ, JR.,

                                    Defendant-Appellee.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 7:02-CR-434-ALL
                       --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Jesus Hernandez, Jr., appeals the sentence imposed by the

district court following the revocation of his supervised

release.   Hernandez was sentenced to an eight-month term of

imprisonment and to an eight-month term of supervised release

with the special condition of community confinement and with the

additional condition that Hernandez was not to be released from

the Bureau of Prisons until there was a bed available for him at




     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                           No. 05-40729
                                -2-

a halfway house.   For the reasons set forth below, we VACATE and

REMAND.

     Hernandez first contends that the district court was without

authority to sentence him to community confinement as a condition

of supervised release.   He argues that the imposition of

community confinement as a condition of supervised release is not

permitted under the plain language of the governing statutes, 18

U.S.C. § 3563(b) and § 3583(d).

     This court recently rejected a similar argument and

determined that a district court has authority to impose

confinement in a community corrections facility as a condition of

supervised release.   See United States v. Del Barrio, 427 F.3d

280, 283-84 (5th Cir. 2005).   Del Barrio controls this issue and

Hernandez is not entitled to relief.

     Hernandez also contends that the district court was not

authorized to impose as a condition of supervised release that he

not be released from the Bureau of Prisons until a bed was

available to him at a halfway house.   He argues that such a

condition converts his eight-month of imprisonment into an

indefinite, conditional prison sentence and violates both 18

U.S.C. § 3624(a) and his rights under the Due Process Clause.

Hernandez requests that the condition requiring him to remain in

the custody of the Bureau of Prisons until a bed is available at

a halfway house be vacated.
                           No. 05-40729
                                -3-

     Inmate records reflect that Hernandez was released from the

Bureau of Prisons on December 12, 2005.   Nevertheless,

Hernandez’s appeal is not moot, because there is a possibility

that the district court may alter Hernandez’s period of

supervised release pursuant to 18 U.S.C. § 3583(e)(2), if it

determines that he has served excess prison time.   See Johnson v.

Pettiford, ___ F.3d ___, 2006 WL ________ (5th Cir. March 14,

2006).   Accordingly, the judgment of the district court is

VACATED and this case is REMANDED to the district court for

further proceedings consistent with this opinion.

                                             VACATED and REMANDED.
