                             ____________

                              No. 95-3665
                             ____________


United States of America,         *
                                  *
                Appellee,         *
                                  * Appeal from the United States
     v.                           * District Court for the
                                  * Western District of Missouri
Charles E. St. John,              *
                                  *
                Appellant.        *

                             ____________

                  Submitted:    March 12, 1996

                       Filed: August 19, 1996
                           ____________

Before McMILLIAN, BEAM and HANSEN, Circuit Judges.
                           ____________


McMILLIAN, Circuit Judge.


      Charles E. St. John appeals from a final judgment entered in
the District Court1 for the Western District of Missouri revoking
his supervised release and sentencing him to 14 months imprisonment
to be followed by 22 months supervised release. The district court
also ordered St. John to pay the balance of the fine which had been
originally imposed. For reversal, St. John argues the district
court erred in imposing a revocation sentence that included both a
term of imprisonment and a term of supervised release because 18
U.S.C. § 3583(e)(3) does not authorize supervised release upon
revocation of supervised release and because 18 U.S.C. § 3583(h),
which does authorize supervised release upon revocation of
supervised release, was not in effect at the time the offenses were


     1
      The Honorable Howard F. Sachs, United States District Judge
for the Western District of Missouri.
committed. St. John argues that application of 18 U.S.C. § 3583(h)
imposes an increased penalty and thus violates the ex post facto
clause. For the reasons discussed below, we affirm the judgment of
the district court.


      In December 1989 a federal grand jury indicted St. John for
conspiracy to distribute dilaudid in violation of 21 U.S.C. § 846,
seven counts of distribution of dilaudid in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C), and unlawful possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). St. John pleaded guilty to the
seven distribution counts and the firearms count, and in September
1990 the district court sentenced him to 63 months imprisonment, 36
months supervised release and a $4,000 fine. St. John completed
his prison sentence and began serving his term of supervised
release in May 1995.    Almost immediately St. John violated the
conditions of supervised release.        Among other things, he
repeatedly tested positive for illegal drug use, operated a motor
vehicle under the influence of alcohol, and was arrested for
solicitation. The government filed a motion to revoke supervised
release.   In October 1995 the district court held a revocation
hearing; St. John did not contest the allegations of the
violations.   The district court revoked supervised release and
sentenced St. John to 14 months imprisonment to be followed by 22
months supervised release, for a total of 36 months, the length of
the original term of supervised release. The district court did
not explicitly state the statutory basis for its order.         The
practical effect of the revocation sentence is that St. John will
serve in prison 14 of the 36 months of the original term of
supervised release. The district court also ordered him to pay the
balance of the fine originally imposed. This appeal followed.


     St. John argues the district court erred in sentencing him to
both a term of imprisonment and a term of supervised release




                               -2-
because 18 U.S.C. § 3583(e)(3)2 does not authorize the imposition,
upon revocation of supervised release, of both a term of
imprisonment and a term of supervised release. St. John argues
that, at the time he was originally sentenced in 1990, the only
court to interpret § 3583(e)(3) had held that, because § 3583(e)
was written in the disjunctive, a district court could revoke
supervised release and either impose a term of imprisonment or
modify the terms of the original supervised release, but not both.
United States v. Behnezhad, 907 F.2d 896, 898 (9th Cir. 1990). St.
John acknowledges that this court subsequently held § 3583(e)(3)
authorized imposition of a revocation sentence including both a
term of imprisonment and a term of supervised release, United
States v. Schrader, 973 F.2d 623, 624-25 (8th Cir. 1992), but he
argues that due process prohibits imposition of a sentence based on
case law decided after the offense was committed. St. John also



     2
      18 U.S.C. § 3583(e)(3) provides in part:

          (e) Modification of conditions or revocation.    The
     court may . . .

               . . . .

               (3) 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
          without credit for time previously served on
          postrelease supervision, if the court . . .
          finds by a preponderance of the evidence that
          the   defendant   violated   a  condition   of
          supervised release, except that a defendant
          whose term is revoked under this paragraph may
          not be required to serve more than 5 years in
          prison if the offense that resulted in the
          term of supervised release is a class A
          felony, more than 3 years in prison if such
          offense is a class B felony, more than 2 years
          in prison if such offense is a class C or D
          felony, or more than one year in any other
          case . . . .

                               -3-
acknowledges that 18 U.S.C. § 3583(h) (effective Sept. 13, 1994),3
which Congress enacted in 1994 as part of the Violent Crime Control
Act and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 110505,
1994 U.S.C.C.A.N. (108 Stat.) 1796, 2017, specifically authorizes,
upon revocation of supervised release, the imposition of both a
term of imprisonment and a term of supervised release. However,
St. John argues that, because § 3583(h) was enacted subsequent to
his conviction and increases the penalty for the offenses, applying
§ 3583(h) to him would violate the ex post facto clause.


     Article I, § 9, of the Constitution prohibits Congress from
passing ex post facto laws. "[A]ny statute . . . which makes more
burdensome the punishment for a crime, after its commission, . . .
is prohibited as ex post facto." Collins v. Youngblood, 497 U.S.
37, 42 (1990). "[T]o fall within the ex post facto prohibition,
two critical elements must be present: first, the law ‘must be
retrospective, that is, it must apply to events occurring before
its enactment’; and second, ‘it must disadvantage the offender
affected by it.’" Miller v. Florida, 482 U.S. 423, 430 (1987),
citing Weaver v. Graham, 450 U.S. 24, 29 (1981). Cf. California
Dep’t of Corrections v. Morales, 115 S. Ct. 1597, 1602 n.3 (1995)
(shifting focus from whether the legislative change "produces some
sort of ambiguous ‘disadvantage’" to whether legislative change
"alters definition of criminal conduct or increases the penalty by


     3
      18 U.S.C. § 3583(h) provides:

          (h) Supervised release following revocation. 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.

                               -4-
which a crime is punishable"). "It is ‘axiomatic that for a law to
be ex post facto it must be more onerous than the prior law.’"
Miller v. Florida, 482 U.S. at 431, citing Dobbert v. Florida, 432
U.S. 282, 294 (1977); see, e.g., United States v. Bell, 991 F.2d
1445, 1448 (8th Cir. 1993) (more burdensome punishment after crime
was committed violates ex post facto clause).


     We address first St. John’s ex post facto argument based upon
the Ninth Circuit’s construction of 18 U.S.C. § 3583(e)(3) in
Behnezhad.  This argument must fail because "the ex post facto
clause does not apply to judicial constructions of statutes."
United States v. Burnom, 27 F.3d 283, 284 (7th Cir. 1994); see,
e.g., United States v. Levi, 2 F.3d 842, 844 (8th Cir. 1993)
(noting ex post facto analysis assumes the court is construing the
effects of a penal "law").      "The Ex Post Facto Clause is a
limitation upon the powers of the Legislature and does not of its
own force apply to the Judicial Branch of government." Marks v.
United States, 430 U.S. 188, 191 (1977) (citation omitted).
However, this Behnezhad-based argument raises due process
considerations because


     the principle on which the [Ex Post Facto] Clause is
     based-- the notion that persons have a right to fair
     warning of that conduct which will give rise to criminal
     penalties--   is   fundamental   to   our   concept   of
     constitutional liberty.      As such, that right is
     protected against judicial action by the Due Process
     Clause of the Fifth Amendment.     In Bouie v. City of
     Columbia, 378 U.S. 347[, 353-54] (1964), a case
     involving the cognate provision of the Fourteenth
     Amendment, the Court reversed trespass convictions,
     finding that they rested on an unexpected construction
     of the state trespass statute by the State Supreme
     Court:

          [A]n unforeseeable judicial enlargement of a
          criminal statute, applied retroactively,
          operates precisely like an ex post facto law,
          such as Art. I, § 10, of the Constitution
          forbids. . . . If a state legislature is
          barred by the Ex Post Facto Clause from

                               -5-
           passing such a law, it must follow that a
           State Supreme Court is barred by the Due
           Process Clause from achieving precisely the
           same result by judicial construction.


Marks v. United States, 430 U.S. at 191-92 (citations omitted).

     Viewed from a due process perspective, St. John’s argument is
essentially   that   Schrader   and  this  court’s   later   cases
unforeseeably (and incorrectly) expanded the reach of 18 U.S.C.
§ 3583(e)(3) beyond Behnezhad. St. John argues (accurately) that
all the other circuit courts of appeals that considered the issue
followed Behnezhad and not Schrader. See United States v. Stewart,
7 F.3d 1350, 1354 (8th Cir. 1993) (Lay, J., dissenting) (noting
that this court’s holding in Schrader is contrary to that of all
other circuits that have passed upon the issue and urging
submission to court en banc for reconsideration); United States v.
Krabbenhoft, 998 F.2d 591, 593 n.2 (8th Cir. 1993) (noting
inconsistency between Schrader and the other circuits). However,
this argument overlooks the fact that this court is not bound by
the prior decisions of the other circuit courts of appeals. This
circuit has consistently and repeatedly held that revocation
sentences imposed under 18 U.S.C. § 3583(e)(3) may include both
imprisonment and supervised release, as long as the aggregate of
the two terms is less or equal to the original term of supervised
release.   See, e.g., United States v. Stewart, 7 F.3d at 1352
(stressing Schrader relied entirely on language of § 3583(e)(3) and
not on relationship between § 3583(e) options or sentencing
guidelines); United States v. Krabbenhoft, 998 F.2d at 594 ("term
of supervised release" as used in § 3583(e) means the term of
supervised release as originally imposed by the district court at
sentencing); cf. United States v. Hartman, 57 F.3d 670, 671 & n.2
(8th Cir. 1995) (per curiam) (rejecting argument that recent
enactment of 18 U.S.C. § 3583(h) which expressly allows district
courts to impose revocation sentence consisting of both
imprisonment   and  supervised   release   indicates   this   court

                               -6-
misinterpreted 18 U.S.C. § 3583(e) and instead interpreting new
legislation as confirmation of this court’s interpretation).
Schrader simply does not represent a judicial expansion, much less
an unforeseeable or unexpected judicial expansion, of a criminal
statute, if applied retroactively, which would operate precisely
like an ex post facto law and thus violate due process.


      We next address St. John’s ex post facto argument based on the
difference between the prior law and the new law. This analysis is
necessarily theoretical.      "[A defendant] is not barred from
challenging a change in the penal code on ex post facto grounds
simply because the sentence [the defendant] received under the new
law was not more onerous than that which [the defendant] might have
received under the old."     Dobbert v. Florida, 432 U.S. at 300.
"[T]he ex post facto clause looks to the standard of punishment
prescribed by a statute, rather than to the sentence actually
imposed." Lindsey v. Washington, 301 U.S. 397, 401 (1937).


      Under the prior law, the district court could revoke
supervised release and send the defendant to prison for a period
equal to all or part of the maximum term of supervised release
authorized for the original offense, without allowing any credit
for the time spent on supervised release. 18 U.S.C. § 3583(e)(3).
In this circuit, under the prior law, the district court could
impose, in addition to the term of imprisonment (as limited by the
statute), a new term of supervised release, so long as the
aggregate of the two terms is less than or equal to the original
term of supervised release. United States v. Krabbenhoft, 998 F.2d
at 594 (interpreting "term of supervised release" as used in
§ 3483(a), (b), and (e) to refer to term of supervised release
originally imposed by district court at sentencing); United States
v. Schrader, 973 F.2d at 624-25. The new law expressly authorizes
the district court to revoke supervised release and impose both a
term of imprisonment and a term of supervised release. 18 U.S.C.
§ 3583(h). However, the district court can impose a new term of

                                -7-
supervised release only if the term of imprisonment is less than
the maximum term of imprisonment authorized under § 3583(e)(3), and
the new term of supervised release may not exceed the term of
supervised release authorized 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. Id.

      Determining whether the new law increases the penalty
authorized under the prior law is complicated by several factors.
First, the maximum authorized terms of supervised release under
§ 3583(b) do not exactly match the maximum authorized terms of
imprisonment   for   revocation   of   supervised   release   under
§ 3583(e)(3).    For example, for a Class A felony the maximum
authorized term of supervised release is 5 years, the same as the
maximum authorized term of imprisonment for revocation of
supervised release.      18 U.S.C. § 3583(b)(1), (e)(3).         In
comparison, the maximum authorized term of supervised release for
a Class B felony is 5 years, id. § 3583(b)(1); however, the maximum
authorized term of imprisonment for revocation of supervised
release for a Class B felony is 3 years, id. § 3583(e)(3).
Similarly, the maximum authorized term of supervised release for a
Class C felony is 3 years, id. § 3583(b)(2), but the maximum
authorized term of imprisonment for revocation of supervised
release for a Class C felony is 2 years, id. § 3583(e)(3).


     Second, unlike the prior law, the new law authorizes the
district court to impose a new term of supervised release only when
the defendant is required to serve a term of imprisonment that is
less than the maximum term of imprisonment authorized under
§ 3583(e)(3). Id. § 3583(h). Thus, under the new law, if the
district court revokes supervised release and imposes the maximum
term of imprisonment authorized, the district court cannot impose
a new term of supervised release.




                               -8-
      Third, this circuit has capped the maximum period of time that
a defendant’s freedom can be restrained, upon revocation of
supervised release, to the term of supervised release imposed in
the original sentence. United States v. Stewart, 7 F.3d at 1352-53
(the aggregate of term of imprisonment and new term of supervised
release cannot exceed term of supervised release imposed in the
original sentence).    The new law provides that the new 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."           18 U.S.C.
§ 3583(h). We acknowledge that the meaning of the phrase "the term
of supervised release authorized by statute for the offense that
resulted in the original term of supervised release" in this
subsection is not free from doubt. The phrase could refer to the
maximum authorized term of supervised release, id. § 3583(b). See
United States v. Beals, 87 F.3d 854, 857 (7th Cir. 1996)
(interpreting both § 3583(e)(3) and § 3583(h) to refer to the
maximum term of supervised release authorized for original
offense). However, we will construe the phrase to have the same
meaning in the prior law and the new law, that is, to refer to the
term of supervised release in the original sentence rather than the
maximum authorized term of supervised release. United States v.
Krabbenhoft, 998 F.2d at 594, citing Kifer v. Liberty Mutual
Insurance Co., 777 F.2d 1325, 1333 n.9 (8th Cir. 1985) (when same
word or phrase is used in same section of an act more than once,
and its meaning is clear as used in one place, it will be construed
to have the same meaning in the next place).


     Finally, the express availability of a new term of supervised
release under the new law is the key difference between the prior
law and the new law. However, we believe that the new law and our
interpretation of the prior law have the same effect. As noted
above, this circuit had consistently and repeatedly held that
revocation sentences imposed under 18 U.S.C. § 3583(e)(3) could

                                -9-
include both imprisonment and supervised release, as long as the
aggregate of the two terms is less or equal to the original term of
supervised release. See, e.g., United States v. Stewart, 7 F.3d at
1352.   That difference distinguishes cases in our circuit from
cases in those circuits which had interpreted the prior law to
preclude a new term of supervised release upon revocation of
supervised release. For example, in United States v. Beals, 87
F.3d at 857-58, the Seventh Circuit held that the new law
disadvantages a defendant in violation of the ex post facto clause.
The Seventh Circuit was one of the circuit courts of appeals that
had interpreted the prior law to preclude a new term of supervised
release upon revocation of supervised release. See United States
v. McGee, 981 F.2d 271, 274 (1992). In Beals the Seventh Circuit
noted that because a defendant receives no credit for time
previously served on postrelease supervision, a defendant is
potentially subject to greater punishment under the new law than
the prior law. 87 F.3d at 857-58. This is because under the prior
law, as interpreted in the Seventh Circuit, "a defendant could
serve only one term of supervised release and thus only once ‘lose’
credit for time served prior to the revocation," but under the new
law "a defendant can serve multiple terms of supervised release and
thus potentially ‘lose’ multiple periods of time after the initial
revocation." Id. at 857 (analysis also interprets § 3583(h) to
permit new term of supervised release to be maximum period of
supervised release authorized by statute for the offense, less any
term of imprisonment imposed upon revocation).      But see United
States v. Brady, 88 F.3d 225, 228-29 (3d Cir. 1996) (holding new
law does not change amount of time defendant’s liberty can be
restrained for violating supervised release; analysis interprets
prior law and new law to limit that time to maximum term of
supervised release authorized for given offense, without any credit
for time spent on supervised release).


     We conclude that a defendant is not potentially subject to an
increased penalty under § 3583(h) because, given our interpretation

                               -10-
of § 3583(e)(3) in Schrader and subsequent cases like Krabbenhoft,
the maximum period of time that a defendant’s freedom can be
restrained upon revocation of supervised release under the new law
is either the same as, or possibly less than, under the prior law.
Because application of the new law does not result in an increased
penalty, there is no ex post facto violation. That the potential
penalty for revocation of supervised release under the new law is
the same, or possibly less, under the prior law can best be
illustrated by example. In the case of a Class A felony, for which
the maximum authorized term of supervised release is the same as
the maximum term of imprisonment authorized under § 3583(e)(3), the
availability of a new term of supervised release under the new law
does not increase the time the defendant is subject to government
supervision, either in prison or on supervised release.         See
United States v. Brady, 88 F.3d 225, 228-29 (3d Cir. 1996)
(possibility of 5-year loss of freedom both before and after
enactment of § 3583(h) for defendant convicted of possession with
intent to distribute, a Class A felony; noting that only difference
is that under new law defendant’s liberty can be restrained by
"mix" of imprisonment and supervised release (assuming term of
imprisonment is less than 5 years)). In the case of a Class C
felony, for which the maximum authorized term of supervised release
is 3 years, under the prior law as interpreted in this circuit, a
defendant could be sentenced, upon revocation of supervised
release, to a term of imprisonment of 2 years (the maximum term of
imprisonment authorized under § 3583(e)(3)) to be followed by a
term of supervised release of 1 year. Under the new law, however,
that defendant could not be sentenced to a term of supervised
release, and thus would be subject to less punishment than under
the prior law, because the term of imprisonment was not less than
the maximum term of imprisonment authorized under § 3583(e)(3).


     The availability of a new term of supervised release under the
prior law in this circuit (but not in other circuits) explains why
the Seventh Circuit reached the contrary conclusion in the

                               -11-
hypothetical in Beal, 87 F.3d at 858. In the Beal hypothetical, A
is convicted of a Class C felony and sentenced to a term of
imprisonment followed by 3 years of supervised release (the maximum
authorized under § 3583(b)(2)). A serves the prison time and is
released under supervision. One year later A violates the terms of
supervised release. Under the prior law in the Seventh Circuit,
because an additional term of supervised release was not permitted
upon revocation of supervised release, the maximum penalty the
district court could impose was 2 years imprisonment (under
§ 3583(e)(3)). At the end of 2 years, the government’s supervision
of A was extinguished. However, under the new law, if the district
court sentences A to 2 years on a combination of imprisonment and
supervised release (1 year imprisonment and 1 year supervised
release), then if A violates the terms of that second supervised
release 6 months later, the district court could sentence A to up
to 1 year in prison (2-year maximum less 1 year already served).
The Seventh Circuit concluded that under the new law A would be
subject to a total of 2 1/2 years punishment from the time of
initial revocation (1 year in prison, 6 months on supervised
release, then 1 more year in prison), or 6 months longer than that
allowed under the prior law (2 years in prison, no new term of
supervised release). In this circuit, however, under the prior law
the maximum penalty the district court could impose was 3 years
(the term of supervised release originally imposed), not 2 years;
the maximum term of imprisonment would be the same (limited to 2
years), but the district court could impose an additional term of
supervised release of up to 1 year.


     In sum, because the availability of supervised release under
18 U.S.C. § 3583(h) does not increase the penalty authorized under
18 U.S.C. § 3583(e)(3), there is no ex post facto violation.
Accordingly, we affirm the judgment of the district court.




                               -12-
A true copy.

     Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                           -13-
