                                                                        [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                      FOR TH E ELEV ENTH C IRCUIT                  FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEV ENT H CIR CUIT
                                                             September 19, 2003
                              No. 02-16815                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 97-00409-CR-KMM

UNI TED STA TES OF A MER ICA,


                                                                Plaintiff- Appe llee,

                                   versus

BRIA N PL A,

                                                          Defen dant-A ppellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________
                            (September 19, 2003)


Before TJOF LAT, BIR CH and G ODBO LD, Circuit Judges.

PER CURIAM:
      This case arises from a motion to withdraw as appointed appeals counsel

pursuant to Ande rs v. Calif ornia, 386 U.S. 738 (1967). In 1997 the appellant pled

guilty to one count of importing cocaine into the United States in violation of 21

U.S.C. §952(a). He was ordered to serve 38 months in prison followed by three

years of supervised release. He began serving his three year supervised release

term in November of 2000. Between November of 2000 and August of 2002, the

appellant repeatedly violated the terms of supervised release by testing positive for

marijuana. Subsequent to the third positive testing he failed to report for further

urinalysis and w as arrested in Octo ber of 2 002 on bond v iolations. T he cour t,

pursuant to 18 U.S.C. §3583(e)(3), (g) and (h) revoked appellant’s supervised

release and ordered that he be imprisoned for nine months followed by 51 months

of supervised release. Appellant’s counsel timely objected to the length of the

superv ised releas e and no w app eals.

       “This court reviews de novo the legality of a sentence, including a sentence

imposed pursuant to revocation of a term of supervised release.” U.S. v. Aimufa,

122 F.3d 1376, 13 78 (11th C ir. 1997). In d etermining w hether appo inted counse l’s

motion to withd raw sh ould be granted this cour t review s the full re cord to

determin e wheth er the case is who lly frivolo us. Anders, 386 U .S. at 744 . If it

finds “any of the legal points arguable on their merits . . . it must, prior to decision,



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afford the indigent the assistance of counsel to argue the appeal.” Id.



       In U.S. v. Gresham this court found that 18 U.S .C. §3583(e)(3) authorizes a

court revoking a person’s supervised release to impose both a new prison term and

a new term of supervised release. 18 U.S.C. §3583(e)(3) caps the length of

supervised release pending on the class of felony originally committed and any

prison term served after the initial supervised release revocation is subtracted from

this cap. 325 F.3d 1262, 1267 (11th Cir. 2003). This court further held that

“[i]mplicit in both the [U.S. v. Williams, 2 F.3d 36 3 (11th C ir. 1993)] pan el’s

analysis and the Supreme Court’s analysis in [Johnson v. U.S., 529 U.S. 694

(2000 )] is the fact th at the sup ervised r elease term starts anew once it is re voked .

Neither court contemplated a defendant receiving credit for prior time served.” Id.

       Appellant’s appeal addresses the issue of whether 18 U.S.C. §3583(h)

requires the court to give credit for time previously served o n supervised release

when it revokes the initial term of supervised release and orders an additional

prison te rm follo wed b y a new term of s upervis ed release . Subse ction (h) states:

       Supervised release following revocation -- When a term of supervised

       release is revoked and the defendant is required to serve a term of

       imprisonment, the court may include a requirement that the defendant



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       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.

       The above language differs from subsection (e)(3) in that it is silent on the

issue of whether credit ought to be g iven for time previously served on p ost-release

supervision. The only credit that subsection (h) clearly enumerates is time served

in prison post revocation of supervised release. The Supreme Court has held that

“[w]here Congress explicitly enumerates certain exceptions to a general

prohibition, additional exceptions are not to be implied, in the absence of evidence

of a contrary legislative intent.” U.S. v . Smith, 499 U.S. 160, 167 (1991) (quoting

Andrus v. Glover Constr. Co., 466 U .S. 608 , 616-1 7 (198 0). Thu s, by exp licitly

stating that credit shall only be given for time served in prison post revocation,

congressional intent was to foreclose any o ther type of credit. This silence is also

consisten t with su bsection (e)(3), w hich also foreclos es credit fo r time pre viously

served o n super vised release. This decision is consiste nt with o ur sister cir cuits.

U.S. v. Pettus, 303 F .3d 480 , 484-5 (2d Cir . 2002) ; U.S. v. Cade, 236 F.3d 463,



                                             4
467 (9th Cir. 2000).

       Moreover, the appellant contends that the original sentence of three year

supervised release ordered by the court binds the court on revocation to the

maximum of three years that m ay be divided between add itional supervised release

and/or prison term. 18 U.S.C § 3583 (g) states that the court shall revoke the term

of supe rvised re lease for e numer ated instan ces includ ing failing to comp ly with

drug testing and repeatedly testing positive for illegal controlled substance. Upon

revocation the court will “require the defendant to serve a term of imprisonment

not to exceed the maximum term of imprisonment authorized under subsection (e)

(3).” Subsection (e)(3) authorizes the court to impose additional prison term

and/or supervised release not to exceed “5 years in prison if the offense that

resulted in the term of supervised release is a class A felony,” the class of felony of

which the appe llant had b een con victed. T hese tw o subse ctions rea d in

conjunction with subsection (h) authorize the court to divide the 5-year maximum

sentence between prison term and supervised release as the court sees fit. The

language of §3583(e)(3), (g) and (h) makes clear that the length of additional

supervised release and prison term upon revocation is not bound by the original

term of s upervis ed release but by th e class of f elony of which the appe llant is

convicted. Thus “the aggregate of pre-revocation and post-revocation supervised



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release terms may exceed the maximum length of supervised release that § 3583(b)

dictates should attach to the underlying offense.” Gresham, 325 F .2d at 12 68.

      Counsel’s Motion to withdraw is GRANTED, and the revocation and

sentence are AF FIRM ED.




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