     Case: 13-30665      Document: 00512735651         Page: 1    Date Filed: 08/15/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                      No. 13-30665                                  FILED
                                                                              August 15, 2014
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk

                                                 Plaintiff-Appellee

v.

JHAN GIBBS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:91-CR-410-19


Before HIGGINBOTHAM, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Jhan Gibbs was convicted in 1994 of conspiracy to distribute a controlled
substance and use of a firearm during and in relation to a drug-trafficking
crime. We affirmed Gibbs’s convictions on direct appeal. United States v.
Williams, No. 94-30408, 1995 WL 449907, *1-7 (5th Cir. 1995) (unpublished).
In May 1997, following the Supreme Court decision in Bailey v. United States,
516 U.S. 137 (1995), the district court granted Gibbs’s motion filed pursuant to
28 U.S.C. § 2255 and vacated Gibbs’s conviction on the firearm count. Gibbs’s


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 13-30665

supervised release term (SRT) on his drug-conspiracy conviction began in
November 2010, and the Government moved to have Gibbs’s SRT revoked in
April 2013. At his revocation hearing, Gibbs conceded the allegations that he
had violated the conditions of his SRT. The district court revoked Gibbs’s SRT,
and it imposed a revocation sentence of 60 months of imprisonment on the
drug-conspiracy count and 24 months of imprisonment on the firearm count.
Gibbs made no objections following the district court’s pronouncement of
judgment. He did, however, file a timely notice of appeal.
      In his first issue, Gibbs challenges the 60-month sentence imposed upon
the revocation of his SRT on the drug-conspiracy count, arguing that the
sentence is illegal.   We review this illegal-sentence claim de novo despite
Gibbs’s failure to object in the district court.   See United States v. Vera,
542 F.3d 457, 459 (5th Cir. 2008). Gibbs correctly argues that the penalty
statute in effect in 1991 when he committed his offense controls here and that,
under that law, a revocation sentence could not exceed the original SRT
imposed. See Johnson v. United States, 529 U.S. 694, 701-02 (2000); United
States v. Hampton, 633 F.3d 334, 340 (5th Cir. 2011); 18 U.S.C. § 3583(e)(3)
(West 1991). He incorrectly asserts, however, that the original SRT imposed
was for only three years. The district court orally pronounced a five-year SRT.
The written judgment failed to specify the length of the SRT, and an amended
judgment was entered to correct that omission, but correction inaccurately
reflected a three-year SRT. Under the penalty statutes in effect at the time of
Gibbs’s offense, however, the district court was mandated to impose a five-year
SRT when it imposed a sentence of imprisonment on the drug-conspiracy
count. See 18 U.S.C. §§ 3559(a)(1) and 3583(b)(1) (West 1991); 21 U.S.C.
§ 841(b)(1)(A) (West 1991). Because the original SRT imposed was for 60
months, Gibbs’s argument that the 60-month revocation sentence was illegal



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                                 No. 13-30665

fails. That portion of the district court’s judgment revoking Gibbs’s SRT on his
drug-conspiracy conviction and imposing a 60-month revocation sentence is
AFFIRMED.
      In his second issue, Gibbs challenges the legality of the revocation of his
SRT on the firearm count and the two-year revocation sentence imposed by the
district court. Because Gibbs’s firearm conviction was vacated in 1997, the
district court lacked jurisdiction to revoke his SRT and impose a new term of
imprisonment on that conviction. Cf. United States v. Lynch, 114 F.3d 61, 63-
64 (5th Cir. 1997) (concluding that district court lacked jurisdiction to impose
revocation sentence where SRT violations occurred well after expiration of
SRT). Accordingly, with respect to that portion of the district court’s judgment
revoking Gibbs’s SRT and imposing a two-year revocation sentence on the
firearm count, we REVERSE and REMAND WITH INSTRUCTIONS to
VACATE the order revoking Gibbs’s supervised release and to DISMISS with
prejudice the revocation motion to the extent that it relates to Gibbs’s firearm
conviction.




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