                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                 APRIL 27, 2007
                                 No. 06-12886                  THOMAS K. KAHN
                             Non-Argument Calendar                  CLERK
                           ________________________

                      D. C. Docket No. 01-01047-CR-KMM

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                      versus

MONIQUE ROBERTS,
                                                          Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________

                                  (April 27, 2007)

Before DUBINA, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

      Monique Roberts appeals the 12-month term of supervised release following

her 20-month prison term that was imposed upon revocation of her prior

supervised release. She argues that an additional term of supervised release under
the applicable version of the supervised release statute, 18 U.S.C. § 3583(h), is

impermissible because she has already served the statutory maximum allowed

under 18 U.S.C. § 3583(e)(3). We agree, reversing the sentence imposed by the

district court and remanding.

                                          I.

      Following an entry of plea of guilty to importing cocaine into the United

States on or about November 7, 2001, in violation of 21 U.S.C. § 952(a), the

district court sentenced Roberts to thirty-seven months’ imprisonment, to be

followed by two years of supervised release. After being released from custody,

Roberts violated the terms of her supervised release and was ultimately rearrested

on December 30, 2004.

      A revocation hearing was held on January 25, 2005, which resulted in the

revocation of Roberts’s term of supervised release, and a custodial sentence of

“time served,” without specifying how much time this involved. The district court

also imposed another term of supervised release of three years (“Roberts I”).

      After being released from custody, Roberts again violated the terms of her

supervised release. The district court entered another order on November 21, 2005

revoking Roberts’s new three-year term of supervised release, sentencing her to




                                          2
three months in prison,1 and imposing another term of supervised release of

twenty-four months (“Roberts II”).

       After being released from imprisonment, Roberts again violated the terms of

her supervised release. At the revocation hearing, both parties requested a sentence

of twenty months’ imprisonment. The district court imposed a sentence of twenty

months’ imprisonment, to be followed by twelve months of supervised release.

Defense counsel objected, arguing that the district court could not impose an

additional term of supervised release, because Roberts’s aggregate terms of

imprisonment after the revocations of her supervised release terms already met the

statutory maximum term of incarceration prescribed by 18 U.S.C. § 3583. The

district court overruled the objection and sentenced Roberts to twenty months’

imprisonment, to be followed by twelve months of supervised release. Roberts now

appeals.

                                                II.

       We review the legality of a sentence and issues of statutory construction de

novo. United States v. Pla, 345 F.3d 1312, 1313 (11th Cir. 2003); United States v.

Cobia, 41 F.3d 1473, 1475 (11th Cir. 1995).




       1
         Although the record is not clear on this issue, both parties agreed at sentencing, and on
appeal, that Roberts served four months’ imprisonment.

                                                 3
       The version of 18 U.S.C. § 3583(e)(3) in effect at the time of the offense,2

provided that a court may not require a defendant whose supervised release term

was revoked to serve more than two years in prison if the offense was a class C

felony.3 18 U.S.C. § 3583(e)(3) (October 26, 2001 to November 1, 2002) (amended

2003). Further, the two-year maximum term of imprisonment prescribed by

§ 3583(e)(3) is to apply in the aggregate. Williams, 425 F.3d at 989.

       With reference to supervised release, the following version of 18 U.S.C. §

3583(h) was in effect at the time the underlying offense was committed:

       When a term of supervised release is revoked and the defendant is
       required to serve a term of imprisonment that is less than the
       maximum term of imprisonment authorized under subsection (e)(3),
       the court may include a requirement that the defendant be placed on a
       term of supervised release after imprisonment.

18 U.S.C. § 3583(h) (1995) (amended 2003) (emphasis added).

       We must determine whether this version of 18 U.S.C. § 3583(h) authorizes a



       2
          Because there is no congressional intent indicating otherwise, the supervised release
statute— [18 U.S.C. § 3583]—in effect on November 7, 2001, when the underlying offense of
Count One of the indictment was committed, governs the penalties that may be imposed on
Roberts. Johnson v. United States, 529 U.S. 694, 701-02 (2000) (“[P]ostrevocation penalties
relate to the original offense.” ). United States v. Williams, 425 F.3d 987, 988 n.1 (11th Cir.
2005).
       3
         Section 952(a) of Title 21 of the United States Code, the offense for which Roberts was
convicted, was a class C felony at the time of Roberts’s conviction. See 18 U.S.C. § 3559(a)(3)
(Nov. 13, 1998 - April 29, 2003 version) (discussing that a class C felony is one that has a
maximum term of imprisonment of more than ten years, but less than twenty-five years); 21
U.S.C. § 960(b)(3) (February 18, 2000 - November 1, 2002 version) (noting that the maximum
term of imprisonment for violating 21 U.S.C. § 952(a) was 20 years’ imprisonment).

                                                4
court to impose an additional term of supervised release when the defendant, as

here, has served the maximum term of imprisonment. “[T]he first canon of

statutory construction” is “that courts give effect to the plain and unambiguous

language of a statute.” Owens v. Samkle Auto. Inc., 425 F.3d 1318, 1321 (11th

Cir. 2005). “As in any case of statutory construction, our analysis begins with the

language of the statute. And where the statutory language provides a clear answer,

it ends there as well.” Id. (quotation marks and citations omitted).

       The statute permits a court to impose an additional term of supervised

release only “when a term of supervised release is revoked and the defendant is

required to serve a term of imprisonment that is less than the maximum term of

imprisonment authorized under subsection (e)(3).” 18 U.S.C. § 3583(h) (emphasis

added). The use of the word “and” in this statutory context is unambiguous. Am.

Bankers Ins. Group v. United States, 408 F.3d 1328, 1332 (11th Cir. 2005)

(“[U]nless the context dictates otherwise, the word ‘and’ is presumed to be used in

its ordinary sense, that is, conjunctively.”). Thus, according to a plain reading of

this statute, two independent prongs must be satisfied before an additional

supervised release term may be imposed under this section. First, the prior term of

supervised release must be revoked. Second, the defendant must not have served a

term of imprisonment equal to or greater than the maximum term of imprisonment



                                           5
authorized under § 3583(e)(3). See also United States v. Merced, 263 F.3d 34, 37

(2nd Cir. 2001) (persuasive authority); United States v. Brings Plenty, 188 F.3d

1051, 1053 (8th Cir. 1999) (persuasive authority); United States v. Beals, 87 F.3d

854, 857-58 (7th Cir. 1996) (persuasive authority), overruled on other grounds by

United States v. Withers, 128 F.3d 1167, 1172 (7th Cir. 1997).

       In this case, while the first requirement was satisfied, the second requirement

was not. Roberts will have served an aggregate of at least twenty-four months (or

2 years) of post-revocation custody in prison, the maximum term of incarceration

prescribed by § 3583(e)(3) for a class C felony, at the time of the commencement

of the present supervised release term.

       Because Roberts will have served the statutory maximum term of

imprisonment authorized by § 3583(e)(3) once she completes the current twenty

month prison sentence, the plain language of 18 U.S.C. § 3583(h) prohibited the

district court from imposing the present term of supervised release. Therefore, we

conclude that the district court’s latest imposition of supervised release constituted

reversible error, and its order to this effect is vacated.

       REVERSED AND REMANDED.




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