
USCA1 Opinion

	




        November 7, 1995        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1326                                     UNITED STATES,                                      Appellee,                                          v.                                    DON SANDOVAL,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                       [Hon. Mary M. Lisi, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Don Sandoval on brief pro se.            ____________            Sheldon Whitehouse,  United  States Attorney,  Margaret E.  Curran            __________________                             ___________________        and Gerard  B. Sullivan, Assistant  United States Attorneys,  on brief            ___________________        for appellee.                                 ____________________                                 ____________________                      Per Curiam.   Defendant Don  Sandoval appeals  from                      __________            the  sentence the district court imposed on him following the            revocation  of  a term  of  supervised  release.   The  court            sentenced defendant to both a term of imprisonment and a term            of supervised release.                      Defendant first argues  that the supervised release            revocation provision, 18 U.S.C.   3583(e)(3), does not permit            the imposition of a  term of supervised release and a term of                                                            ___            imprisonment.   We rejected  this precise argument  in United                                                                   ______            States   v. O'Neil,  11 F.3d  292  (1st Cir.  1993), and  re-            ______      ______            affirmed our position in United States v. LaPlante, 28 F.3d 1                                     _____________    ________            (1st Cir.  1994) (per  curiam), cert.  denied, 115  S.Ct. 910                                            _____________            (1995).   Defendant has not presented  any persuasive reasons            why we should change this recent statement of the law.                      Defendant's second argument  on appeal is that  the            district court violated  the prohibition of the ex post facto                                                            _____________            clause by applying   3583(h) to him.   This section was added            in  1994.  It specifically provides that when revoking a term            of  supervised release  under subsection  (e)(3),  a district            court may  include a requirement of  supervised release after            imprisonment.                      To fall  within the ex post  facto prohibition, the                                          ______________            new  law "must  disadvantage  the offender  affected by  it."            Miller  v.  Florida,  482  U.S.  423,  430  (1987)  (internal            ______      _______            quotations  and  citation omitted).    Assuming the  district                                         -2-            court used subsection  (h), defendant was not  disadvantaged.            In  O'Neil, we  already  had construed  subsection (e)(3)  to                ______            permit what subsection (h) now  grants expressly.  Cf. United                                                               ___ ______            States  v. Hartman,  57 F.3d  670, 671  (8th Cir.  1995) (per            ______     _______            curiam) (the legislative history of subsection (h) shows that            subsection(e)(3)  permits  both incarceration  and supervised            release).                      Based  on  the  foregoing,  the   judgment  of  the            district court is affirmed.                              ________                                         -3-
