                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4022


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

RONALD MICHAEL MCCRARY,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:07-cr-00037-RBS-TEM-1)


Submitted:   April 26, 2010                  Decided:   May 14, 2010


Before NIEMEYER, DUNCAN, and DAVIS, Circuit Judges.


Vacated by unpublished per curiam opinion.


G. Godwin Oyewole, ATLANTIC LEGAL FOUNDATION, INC., Washington,
D.C., for Appellant.    Laura Marie Everhart, Assistant United
States Attorney, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             On December 11, 2007, following a supervised release

hearing, the district court found that Ronald Michael McCrary

violated     the    terms    of    his    supervised         release,       and    imposed       a

160-day sentence, with credit for time served.                               The district

court also placed McCrary on supervised release for a period of

three years following his release, ordered that he complete a

six-month residential drug treatment program, and ordered that

he   receive    substance         abuse    treatment         and    counseling         for     the

duration of his supervised release term.                        On December 20, 2007,

the district court amended its order, nunc pro tunc, to state

that   upon     release      from        confinement,          McCrary      shall        be     on

supervised release for a term of 205 days.

             While it is unclear exactly when McCrary was released

from   confinement,          it     is     apparently           undisputed         that        his

supervised release term began no later than December 20, 2007.

It further appears undisputed that McCrary had been in custody

awaiting a final supervised release hearing and sentencing on

violations from on or about March 19, 2007 until on or about May

1,   2007,    and    again   from     on    or       about     August      27,    2007    until

sometime     between    December          11,       2007   (the     date    of     the    final

hearing on the violations) and December 20, 2007 (the date the

district     court    entered      its     nunc      pro     tunc   order).            Thus,    it

appears      that    when    the     district          court      imposed        the    160-day

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sentence on December 11, 2007, McCray had served approximately

149 days in custody and was entitled to credit against his 160-

day sentence of at least 149 days.                        Accordingly, it would appear

that,     assuming        the    district             court        intended         to    retain

jurisdiction over the matter for a period of approximately one

year    after     the   final    hearing         (160      days       plus   205    days),    the

district court may have misapprehended the effect of the period

McCrary had been in custody when it entered its nunc pro tunc

order.

            In any event, on November 4, 2008, a United States

probation       officer    filed      a    revocation            petition      alleging      that

McCrary    had    violated      the       terms      of    his    supervised        release    in

numerous ways during 2008.                  On December 16, 2008, following a

revocation hearing, the district court found that McCrary had

again     violated      the     terms       of       his    supervised         release,       and

sentenced him to a term of 18 months and 20 days’ imprisonment.

McCrary appealed.

            McCrary’s counsel has filed a brief with this court,

pursuant     to     Anders      v.    California,               386     U.S.       738   (1967),

concluding that this matter does not present any meritorious

issues on appeal.          Indeed, as suggested above, counsel seems to

aver that the district court intended the 205 days of supervised

release to commence 160 days from the date of the nunc pro tunc

order.      The      Government       has        filed      a     letter       agreeing      with

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counsel’s      Anders      brief    and    waiving      the    right        to     respond.

Nevertheless, the record is clear that the district court (1)

ordered that McCrary shall receive credit for the time he spent

in   custody    awaiting       final      disposition    of     the    violations         he

committed      in   2007      and   (2)     ordered     the    205-day           period   of

supervised release to commence “upon his release from custody.”

McCrary has filed a pro se supplemental brief that identifies

this aspect of the procedural history of this case.

            Jurisdiction is a question of law subject to de novo

review.     United States v. Barton, 26 F.3d 490, 491 (4th Cir.

1994).     Once questioned, the party advocating the exercise of

jurisdiction bears the burden of demonstrating its existence.

Mylan Lab., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir.

1993).      Subject      matter     jurisdiction      cannot      be    forfeited         or

waived.    United States v. Cotton, 535 U.S. 625, 630 (2002).

            In his pro se brief, McCrary questions whether the

district    court       had    jurisdiction      to     revoke        his        supervised

release, which he maintains had previously expired, and/or to

sentence him to a term of imprisonment.                       McCrary cites to the

district court’s amended order of December 20, 2007, which set

his term of supervised release at 205 days, as the basis for his

argument.      We find that McCrary’s argument is meritorious.

            Because           McCrary’s          supervision                began         on

December 20, 2007, his 205-day term of supervision expired on or

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about July 12, 2008, absent further modification, which it does

not appear occurred.            As the probation officer did not file a

revocation petition until November 4, 2008, the district court

lacked jurisdiction to revoke McCrary’s supervised release, as

his term had already expired, much less to sentence him to a

term of imprisonment.           See, e.g., 18 U.S.C. § 3583(i) (2000) (A

court      may    revoke   a    term   of       supervised    release      after    the

supervised release term expires “if, before its expiration, a

warrant or summons has been issued on the basis of an allegation

of   []    a    violation.”);    see   also      Barton,     26   F.3d    490,   491-92

(Courts        retain   jurisdiction        to     hold    hearings       related    to

revocation of supervised release for a reasonable period after

the term of release expires when a petition charging a violation

of   the    conditions     of   supervised       release     is   filed    during   the

period     of    supervised     release.).         Accordingly,     we    vacate    the

district court’s judgment.

                                                                                 VACATED




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