                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 24, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-20598
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

BILLY JOE BURNS,

                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 4:05-CR-185-ALL
                       --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Billy Joe Burns was convicted of possession with intent to

distribute less than 50 kilograms of marijuana; he was sentenced

to 27 months of imprisonment and three years of supervised

release.   Burns now appeals the two-year term of imprisonment

imposed following the revocation of his term of supervised

release.   He argues that the sentence imposed exceeds the maximum

allowed by statute.

     At issue is whether the felony classification of the

underlying offense, which ultimately determines the maximum term

     *
       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this opinion should not be published and is not precedent except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.
                             No. 05-20598
                                  -2-

of imprisonment upon revocation of supervised release, is

determined by the Guidelines range calculated by the district

court for the underlying offense or by the statute.    We recently

held that the appropriate classification is determined by the

statutory section defining the offense.     See United States v.

Alfaro-Hernandez, 453 F.3d 280, 282 (5th Cir. 2006).

     Burns was convicted of possession with intent to distribute

less than 50 kilograms of marijuana, a violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(D).    Section 841(b)(1)(D) provides that,

for cases involving less than 50 kilograms of marijuana, the

defendant shall “be sentenced to a term of imprisonment of not

more than 5 years.”   An offense having a maximum term of

imprisonment of “less than ten years but five or more years” is a

“Class D” felony.   18 U.S.C. § 3559(a)(4).   For Class D felonies,

the maximum term of imprisonment upon revocation of supervised

release is two years.   18 U.S.C. § 3583(e)(3).   Burns was

sentenced to a term of imprisonment of 24 months, which is

“within the statutorily acceptable range.”     Alfaro-Hernandez,

453 F.3d at 282.

     AFFIRMED.
