                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 5 2001
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 00-4091
                                                            (D. Utah)
 SIDNEY FERRIS HANSEN,                               (D.Ct. No. 93-CR-217-J)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant Sidney F. Hansen appeals his sentence after pleading guilty to a


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
one count indictment for felon in possession of a firearm in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). We exercise our jurisdiction under 28 U.S.C. § 1291

and affirm Mr. Hansen’s sentence.



      Following Mr. Hansen’s guilty plea, on April 4, 1994, the district court

sentenced Mr. Hansen to seventy months imprisonment followed by a thirty-six-

month term of supervised release. Mr. Hansen violated the conditions of his

supervised release by testing positive for cocaine metabolite benzoylecgonine,

and then absconding from supervision until his arrest on April 19, 2000.

Thereafter, Mr. Hansen appeared before the district court and admitted to

violating the conditions of his supervised release. The district court revoked Mr.

Hansen’s term of supervised release and resentenced him to eight months

imprisonment and twenty-one months of supervised release.



      On appeal, Mr. Hansen alleges the trial court erred in imposing both a term

of imprisonment and an additional term of supervised release after revoking his

initial term. In support, Mr. Hansen points out that at the time of the resentencing

hearing, the controlling authority in this circuit was United States v. Rockwell,

984 F.2d 1112 (10th Cir. 1993). In Rockwell, this court held 18 U.S.C.

§ 3583(e)(3) required district courts to choose between imposing additional


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imprisonment or additional supervised release after revocation of the initial

period of supervised release. 984 F.2d at 1117. Mr. Hansen acknowledges the

Supreme Court overruled our holding in Rockwell in Johnson v. United States,

529 U.S. 694 (2000). Nevertheless, Mr. Hansen contends due process of law

forbids the retroactive application of Johnson for the purpose of sentencing him

to both additional imprisonment and supervised release. As a result, Mr. Hansen

suggests the district court is required to apply our holding in Rockwell, because it

was the law of this circuit when the district court resentenced him. 1



      We review legal questions relating to the applicability of 18 U.S.C.

§ 3583(e) de novo. See United States v. McAffee, 998 F.2d 835, 837 (10th Cir.

1993) (applying same standard of review to legal questions concerning 18 U.S.C.

§ 3583(g)). The test for determining whether retroactive application of a judicial

decision violates due process is foreseeability. See Johnson v. Kindt, 158 F.3d

1060, 1063 (10th Cir. 1998), cert. denied, 525 U.S. 1075 (1999). The issue is a

question of constitutional law reviewable under a plenary standard. Id. (quotation


      1
         On September 13, 1994, Congress enacted 18 U.S.C. § 3583(h), which expressly
permits a court to impose both imprisonment and an additional term of supervised release
after revocation of a term of supervised release. In Johnson, the Supreme Court held
§ 3583(h) applies to cases in which the initial offense occurred after September 13, 1994.
529 U.S. at 702. Mr. Hansen argues § 3583(h) does not apply to his case, because he
committed his initial offense in 1992. We agree and focus our attention on § 3583(e)(3).


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marks, alteration and citations omitted). “A judicial construction of a statute is

unforeseeable if it is ‘unexpected and indefensible by reference to the law which

had been expressed prior to the conduct at issue.’” Id. (quoting Bouie v. City of

Columbia, 378 U.S. 347, 354 (1964)).



      With these standards in mind, we consider this circuit’s prior rulings on the

1988 version of 18 U.S.C. § 3583(e)(3), in effect at the time of Mr. Hansen’s

original conviction. 2 Initially, this court interpreted § 3583(e)(3) as granting

district courts authority to impose both additional imprisonment and supervised

release after revocation of the initial term of supervised release. See United

States v. Boling, 947 F.2d 1461, 1463 (10th Cir. 1991). At that time, we

recognized the Ninth Circuit’s contrary decision in United States v. Behnezhad,

907 F.2d 896 (9th Cir. 1990), holding a court must chose between either imposing

a term of imprisonment or supervised release. Boling, 947 F.2d at 1462-63.

However, we rejected the Behnezhad holding, noting the United States Sentencing

Commission had subsequently issued policy statements interpreting § 3583(e),


      2
         The 1988 version of § 3583(e)(3) authorized the court to “revoke a term of
supervised release, and require the person to serve in prison all or part of the term of
supervised release without credit for time previously served on postrelease supervision.”
In Johnson, the Supreme Court noted “the current version of § 3583(e)(3) reads slightly
differently,” but “focus[ed] on” and applied “the law in effect at the time of [the
defendant’s] initial crime.” Id. at 697 n.1; see id. at 703-13; supra note 1.


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and Congress appeared to be in the process of amending § 3583, to reflect

disagreement with Behnezhad. Id.



      When this court later addressed the same issue in Rockwell, we reversed

our position announced in Boling. See 984 F.2d at 1117. In so doing, we

acknowledged: 1) the majority of circuits deciding the same issue disagreed with

our holding in Boling, 2) proposed legislation relied on in Boling was never

enacted into law, and 3) policy statements contained in the United States

Sentencing Guidelines and relied on in Boling were not mandatory. See 984 F.2d

at 1116-17.



      Thereafter, the Supreme Court issued Johnson v. United States which

effectively abrogated Rockwell. See Johnson, 529 U.S. at 713. Like the

defendant in Rockwell, the defendant in Johnson was resentenced to a prison term

and supervised release after revocation of his initial term of supervised release.

Id. at 698. The defendant, like Mr. Hansen, argued § 3583(e)(3) did not give

district courts power to impose another term of supervised release following

imprisonment. Id. The Supreme Court held the 1988 version of 18 U.S.C.

§ 3583(e)(3), in effect at the time of Mr. Johnson’s March 1994 conviction,

permitted both imprisonment and imposition of an additional term of supervised


                                         -5-
release on revocation of a defendant’s initial term of supervised release. Id. at

697, 703-04, 713. Accordingly, if Johnson and its interpretation of the 1988

version of § 3583(e)(3) are applied retroactively, the district court had the

authority to impose both a term of imprisonment and supervised release in

resentencing Mr. Hansen.



      Mr. Hansen argues that because Rockwell was the controlling authority in

this circuit at the time of his initial sentence, Johnson cannot be applied

retroactively. To support his position against retroactive application, Mr. Hansen

relies almost exclusively on Devine v. New Mexico Dep’t of Corrections, 866 F.2d

339 (10th Cir.1989). In Devine, we held the retroactive application of a New

Mexico Supreme Court decision contravened the Fourteenth Amendment’s Due

Process Clause because the decision was “unforseeable.” Id. at 339. However,

the circumstances in that case are very different then those presented here. In

Devine, we addressed an issue created when the state legislature passed two

different statutes in the same lelgislative session affecting parole eligibility – one

requiring a ten-year mandatory prison term for a life sentence and another

requiring a thirty-year mandatory prison term for a life sentence. Id. at 340. The

two contradictory provisions did not achieve equal stature because the ten-year

provision was codified and the thirty-year provision was only referenced in the


                                          -6-
compiler’s notes. Id. Even though the thirty-year term provision was not codified

until 1980 – well after the defendant’s conviction – the New Mexico Supreme

Court nevertheless ruled the thirty-year mandatory term applied based on the

oblique reference in the compiler’s notes. Id. at 341, 345.



      In concluding the state supreme court’s decision violated due process, we

applied the standard articulated by the Supreme Court requiring an evaluation “on

whether the judicial decision was foreseeable in light of the ‘law which had been

expressed prior to the conduct in issue.’” Id. at 345 (quoting Bouie, 378 U.S. at

354). Accordingly, we determined neither the defendant nor any student of law at

the time of the defendant’s guilty plea could foresee the state supreme court

decision requiring the thirty-year mandatory prison term on a life sentence,

because: (1) it was not codified at that time, and (2) the actions of both the state

legislature and the prosecuting attorneys revealed their belief the thirty-year

provision in the compiler’s notes was not the prevailing law. Id. at 345-46.



      Unlike the state supreme court’s decision applying a statute obliquely

referenced in compiler’s notes, the Supreme Court decision in Johnson

interpreting § 3583(e)(3) was foreseeable. The law concerning the forseeablility

of a Supreme Court ruling is clear: “The Supreme Court has held that a change in


                                          -7-
the law is foreseeable when circuits are split on the proper construction of a

statute.” United States v. Qualls, 172 F.3d 1136, 1138 n.1 (9th Cir. 1999)

(relying on United States v. Rodgers, 466 U.S. 475, 484 (1984).) We

acknowledge Rockwell was the controlling authority in this circuit at the time of

Mr. Hansen’s initial sentence. However, in that decision we explicitly recognized

the circuits were split, and that this court was reversing its prior position on the

issue of whether § 3583(e)(3) permitted imposition of both a prison term and

supervised release after revocation of the initial term of supervised release. See

Rockwell, 984 F.2d at 1115-17. Thus, the judicial decision in Johnson resolving

the split in circuit authority over § 3583(e)(3) was plainly foreseeable and a

change in the law from our holding in Rockwell was similarly foreseeable. See id.

As a result, Johnson is clearly retroactive in this case and the district court did not

violate Mr. Hansen’s due process rights in applying § 3583(e)(3) to impose both a

term of imprisonment and supervised release in resentencing Mr. Hansen. See id.;

Kindt, 158 F.3d at 1063.



      Accordingly, we AFFIRM Mr. Hansen’s sentence.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge

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