                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-3402
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the Northern
                                         * District of Iowa.
Timothy Lawan Postley,                   *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: March 13, 2006
                                  Filed: June 6, 2006
                                   ___________

Before ARNOLD, JOHN R. GIBSON, and SMITH, Circuit Judges.
                           ___________

JOHN R. GIBSON, Circuit Judge.

      Timothy Postley appeals the sentence imposed upon him following his
conviction on a conditional guilty plea to one count of possession of 50 grams or more
of cocaine base with intent to distribute. 21 U.S.C. § 841. Postley was sentenced to
156 months' imprisonment and five years' supervised release. He contends that he
should not have been assessed a criminal history point for an earlier conviction in
Iowa for interference with official acts with injury, Iowa Code § 719, and that the
imposition of the term of supervised release violates 18 U.S.C. § 3559. We affirm the
sentence imposed by the district court.1

       Postley contends that his 1999 conviction for interference with official acts with
injury under Iowa Code § 719.1 should not have been counted as a criminal history
point under U.S.S.G. § 4A1.2(c)(1). We review a district court's interpretation of the
Sentencing Guidelines de novo and its application of the Guidelines to the facts for
clear error. United States v. Borer, 412 F.3d 987, 991-92 (8th Cir. 2005). Section
4A1.2(c) governs which prior sentences are counted as criminal history points. The
first sentence of the section states flatly: "Sentences for all felony offenses are
counted." The section continues on to discuss which misdemeanor sentences are
counted. Postley argues that his conviction of interference with official acts with
injury is similar to the misdemeanor of "resisting arrest," which the section says
should not always be counted.

       We need not decide whether interference with official acts with injury is similar
to or distinguishable from resisting arrest because in any case it is a felony under the
Sentencing Guidelines. Iowa Code § 719.1 provides that interference with official
acts with injury is an aggravated misdemeanor. The punishment for aggravated
misdemeanors under Iowa law is imprisonment for up to two years. Iowa Code §
903.1. Although the crime is called an "aggravated misdemeanor" under Iowa law,
under the federal Sentencing Guidelines, it falls within the definition of a felony.
U.S.S.G. § 4A1.2(o) ("For the purposes of § 4A1.2(c), a 'felony offense' means any
federal, state, or local offense punishable by death or a term of imprisonment
exceeding one year, regardless of the actual sentence imposed."); United States v.
Jenkins, 989 F.2d 979, 979 (8th Cir. 1993) (state's characterization of offense as




      1
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.

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"infraction" not determinative on whether it counts as a criminal history point).
Therefore, the Iowa sentence must be counted as a criminal history point.

       Postley raises a complex of arguments, all attempting to show that the district
court erred in denying his motion to dismiss the indictment on the ground that 21
U.S.C. § 841(b) violates various federal statutory and constitutional provisions by
authorizing a term of supervised release as part of the sentence. We review de novo
the district court's denial of a motion to dismiss the indictment. United States v. Two
Eagle, 318 F.3d 785, 793 (8th Cir. 2003).

        The statute under which Postley was convicted, 21 U.S.C. § 841, provides that
possessing 50 grams of cocaine base with intent to distribute carries a penalty of
imprisonment of ten years to life, plus a fine, plus a term of supervised release of at
least five years. Postley argues that § 841 violates 18 U.S.C. § 3559(b), of which the
relevant part provides :

      [A]n offense classified under subsection (a) carries all the incidents
      assigned to the applicable letter designation [of subsection (a), which
      classifies felonies and misdemeanors according to the severity of the
      maximum penalties attached] except that the maximum term of
      imprisonment is the term authorized by the law describing the offense.

Thus, § 3559 addresses only the maximum term of imprisonment; it does not address
supervised release and so cannot be violated by § 841(b)'s authorization of a term of
supervised release. Further, § 3559 states that the maximum term of imprisonment is
governed by the law describing the offense--here, § 841(b). Postley argues that by
authorizing a sentence of a term of years plus five years of supervised release, §
841(b) authorizes a sentence in excess of what it authorizes. Postley's argument is
illogical.




                                         -3-
       Nor does Postley's argument improve upon practical application. First, under
§ 841(b), the maximum term of imprisonment for possessing 50 grams of cocaine base
with intent to distribute would be imprisonment for life, as provided by the law
describing the offense. A term of imprisonment for years followed by a term of
supervised release does not exceed a term of imprisonment for life. United States v.
Pollard, 249 F.3d 738, 739 (8th Cir. 2001) (per curiam). Second, the statutory
authorization for a term of supervised release is distinct from the authorization for a
prison term, so the supervised release term does not have to come out of the maximum
prison sentence. United States v. Work, 409 F.3d 484, 489 (1st Cir. 2005) ("The
supervised release period is an independent element of the sentence. It is not carved
out of the maximum permissible time allotted for incarceration under some other
criminal statute."). Even where the substantive statute describing the crime authorizes
only imprisonment, supervised release may nevertheless be authorized by 18 U.S.C.
§ 3583 in addition to the maximum prison term. United States v. Engelhorn, 122 F.3d
508, 510 (8th Cir. 1997) ("[T]he total time involved in a term of imprisonment and
supervised release may exceed the maximum term of incarceration authorized by the
substantive federal statute under which a defendant is convicted."); United States v.
Watkins, 14 F.3d 414, 415 (8th Cir. 1994) (supervised release term properly imposed
in addition to statutory maximum term of imprisonment); United States v. Colt, 126
F.3d 981, 982-83 (7th Cir. 1997) (defendant who had served seven months in prison
was properly sentenced to additional nine months upon revocation of supervised
release, even though substantive statute creating crime only authorized one-year
prison term). Postley's argument is far weaker than that rejected in Watkins and Colt
because his crime was defined by section 841, which authorizes both a term of
imprisonment and a term of supervised release.

      Postley makes a related argument that 18 U.S.C. § 3583 only authorizes
supervised release as a component of the maximum term of imprisonment. This
argument has been rejected generally, see Engelhorn, 122 F.3d at 510; Watkins, 14
F.3d at 415; Colt, 126 F.3d at 983, and even if it were a tenable reading of § 3583,

                                         -4-
Postley's particular crime is governed by § 841(b), which requires both imprisonment
and supervised release and dictates separate terms for each. The argument fails.

       Postley relies on Bifulco v. United States, 447 U.S. 381 (1980), but it defeats,
rather than bolsters his argument, because it concludes that an earlier version of the
drug conspiracy statute, 21 U.S.C. § 846, failed to authorize a special parole term
because it did not specifically authorize it, in contrast to the earlier version of § 841,
which did specifically authorize such a term. Postley was convicted under § 841, not
the conspiracy statute.

       Finally, Postley argues, "Section 841(b)'s imposition of an additional term of
imprisonment by way of supervised release increases the maximum penalty without
such being in the indictment or submitted to the jury. As such, § 841 is
unconstitutional." He cites Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v.
Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005).
As is apparent from the argument above, the imposition of the term of supervised
release was within the statutory maximum penalty, not in excess of it. Postley's
argument is not valid.

      We affirm the sentence imposed by the district court.
                      ______________________________




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