                                                       [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT  OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                          MARCH 29, 2010
                            No. 09-15873                    JOHN LEY
                        Non-Argument Calendar                CLERK
                      ________________________

                  D. C. Docket No. 04-20536-CR-CMA

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                 versus

OSVALDO PIEDRA,
a.k.a. Bolly,

                                                       Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     _________________________
                            (March 29, 2010)

Before BARKETT, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:
      Osvaldo Piedra appeals the district court’s imposition of a supervised

release term. Piedra argues that when he completes his prison term, he will have

served the two-year statutory maximum term of imprisonment for supervised

release violations, and therefore the district court erred by imposing an additional

supervised release term under 18 U.S.C. § 3583(h) (2002). Because we agree, we

vacate and remand the sentence imposed.

      In 2004, Piedra pleaded guilty to a single count of money laundering that

occurred from May 1998 through November 2002, in violation of 18 U.S.C.

§ 1956(h). He was sentenced to 29 months’ imprisonment followed by 3 years of

supervised release.

      Piedra violated the terms of his release and, in 2008, the district court held a

supervised release revocation hearing, revoked Piedra’s supervised release, and

sentenced him to 12 months and 1 day incarceration, followed by 24 months of

supervised release. In 2009, the district court held another supervised release

revocation hearing. Piedra admitted violating the terms of his second release and

requested that the court sentence him to the high end of the 4-to-10-month

sentencing range and terminate his supervised release due to his alcohol problem.

      The probation officer advised the court that the maximum possible

imprisonment term was 11 months and 29 days, which was the statutory maximum

                                          2
of 24 months minus the 12 months and 1 day incarceration that Piedra had

received for his previous supervised release violation. The probation officer also

advised the court that the maximum supervised release term was 36 months minus

any incarceration time the court imposed here. The district court sentenced Piedra

to 11 months and 29 days imprisonment, followed by 24 months of supervised

release, explaining that it sentenced Piedra above the guideline range “because of

his history, because of his total disregard of his prior opportunities to be in

compliance [with] this Court’s orders.” Piedra objected to the reasonableness of

his sentence but did not mention the additional supervised release. He now

appeals.

      We review de novo the legality of a sentence imposed pursuant to

revocation of a supervised release term. United States v. Mazarky, 499 F.3d 1246,

1248 (11th Cir. 2007). Because Piedra did not challenge the term of supervised

release imposed, we review for plain error. To demonstrate plain error, Piedra

“must show that: (1) an error occurred; (2) the error was plain; (3) it affected his

substantial rights; and (4) it seriously affected the fairness of the judicial

proceedings.” United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003).




                                            3
        Section 3583 of Title 18 governs the imposition of a new term of supervised

release following the revocation of a prior term.1 Section 3583(e)(3) provides

that:

               [t]he court may . . . revoke a term of supervised release,
               and require the defendant to serve in prison all or part of
               the term of supervised release authorized by statute for
               the offense that resulted in such term of supervised
               release . . . except that a defendant whose term is
               revoked under this paragraph may not be required to
               serve . . . more than 2 years in prison if such offense is a
               Class C or D felony . . .

18 U.S.C. § 3583(e)(3) (2002). The charged conspiracy to launder money, 18

U.S.C. 1956(h), is a Class C felony. See 18 U.S.C. § 1956(a)(1) and (h); 18

U.S.C. § 3559(a)(3). Thus, two years is the maximum statutory imprisonment

term for Piedra’s supervised release violations.

        Section 3583(h) limits the maximum term of supervised release imposed

upon revocation to “the term of supervised release authorized by statute for the

offense that resulted in the original term of supervised release, less any term of



1
  Post-revocation penalties for violations of supervised release are attributable to the offense
conduct underlying the original conviction. Johnson v. United States, 529 U.S. 694, 701 (2000).
Piedra committed the relevant offense between May 1998 and November 2002; therefore, we
apply the 2002 version of § 3583 because the supervised release statute in effect at the time of the
original offense controls the penalties that may be imposed for violations of supervised release.
Id.



                                                 4
imprisonment that was imposed upon revocation of supervised release.” 18 U.S.C.

§ 3583(h) (2002).2 “[T]he maximum allowable supervised release following

multiple revocations must be reduced by the aggregate length of any terms of

imprisonment that have been imposed upon revocation.” Mazarky, 499 F.3d at

1250. As this court has explained:

                 in the case of a Class C felony for which the maximum
                 supervised release term is three years, a defendant who is
                 revoked and re-imprisoned for 18 months could be ordered
                 to serve as much as 18 additional months on supervised
                 release (36-month maximum term of supervised release
                 minus 18 months imprisonment equals 18 months possible
                 re-release supervision). If the same defendant was again
                 revoked, he could be re-imprisoned for not exceeding six
                 months (24-month cap minus 18 months previously-served
                 imprisonment equals 6 months allowable imprisonment)
                 and if so imprisoned, could not thereafter be placed on
                 supervision (because the two-year imprisonment cap would
                 have been reached). Thus, under [subsection (h),] a
                 defendant would always be credited for incarceration time


2
    The full text of 18 U.S.C. § 3583(h) (2002) provides that:

                 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. The length of such
                 a term of supervised release shall not exceed the term of supervised
                 release authorized by statute for the offense that resulted in the
                 original term of supervised release, less any term of imprisonment
                 that was imposed upon revocation of supervised release.




                                                   5
             against both the cap on re-imprisonment and the maximum
             authorized period of supervised release.

Mazarky, 499 F.3d at 1249 (citation omitted) (emphasis in original).

      Here, as the government concedes, the district court plainly erred in

imposing an additional term of supervised release. Because 18 U.S.C. § 1956(h)

is a Class C felony, Piedra could not serve more than two years imprisonment for

his supervised release violations. See 18 U.S.C. 3583(e)(3). In aggregate, Piedra

served the 2-year statutory maximum imprisonment term – he served 12 months

and 1 day incarceration for the first revocation and 11 months and 29 days for the

second revocation. Thus, the district court properly applied the requirement in

§ 3583(h) that any term of imprisonment imposed pursuant to revocation be

subtracted from the statutorily authorized term of supervised release. But the

district court failed to recognize that § 3583(h) prohibits the imposition of any

additional supervised release term, where the defendant, as here, has served the

statutory maximum imprisonment term for violating his supervised release. See

Mazarky, 499 F.3d at 1249-50.

      Because the court imposed an illegal supervised release term, the district

court erred, this error was plain, and it affected Piedra’s substantial rights.

Moreover, the error seriously affected the fairness of Piedra’s sentencing



                                           6
proceedings. See Gresham, 325 F.3d at 1265. Thus, we vacate the district court’s

judgment insofar as it imposed the additional term of supervised release and

remand with instructions for the district court to re-sentence Piedra accordingly.3

       SENTENCE VACATED AND REMANDED WITH INSTRUCTIONS.




3
       Although Piedra objected to the reasonableness of his sentence before the district court, he
presents no arguments on appeal that his sentence was unreasonable. Accordingly, Piedra has
abandoned any claim that his sentence was unreasonable. United States v. Cunningham, 161 F.3d
1343, 1344 (11th Cir. 1998).



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