                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4682


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

STEVE CHRISTOPHER WELLS, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.  Samuel G. Wilson, District
Judge. (7:10-cr-00026-SGW-1)


Submitted:   June 19, 2014                 Decided:   July 11, 2014


Before KING, GREGORY, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Christine Madeleine
Lee, Research and Writing Attorney, Roanoke, Virginia, for
Appellant.   Timothy J. Heaphy, United States Attorney, Charlene
R. Day, Assistant United States Attorney, Elizabeth Noles, Third
Year Law Student, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              In July 2010, Steve Christopher Wells, Jr., entered a

guilty plea to possession with intent to distribute five grams

or    more     of      crack   cocaine,          in    violation        of     21    U.S.C.

§ 841(b)(1)(B) (2006).             Without a recidivist enhancement, Wells

faced a mandatory minimum sentence of five years’ imprisonment.

Prior to Wells’ December 2010 sentencing, the Government moved

to    amend    the    charge   to    allow       Wells   to    plead      guilty     to   the

lesser-included         offense     of   violating       21    U.S.C.     § 841(b)(1)(C)

(2006).       The Government made this motion to bring Wells’ case in

line with the Fair Sentencing Act of 2010 (“FSA”), which took

effect on August 3, 2010.                  Wells agreed to the modification,

without reservation.           The district court allowed the amendment

and sentenced Wells to twenty-four months’ imprisonment, to be

followed by four years of supervised release.

              After he was released from prison and while serving

his    supervised       release,     Wells       was   arrested      by      Virginia     law

enforcement          authorities     and     charged          with   felony         eluding.

Thereafter, Wells’ federal probation officer filed a violation

report.       The district court subsequently determined that Wells

violated the terms of his supervised release and sentenced Wells

to    twenty-four       months’     imprisonment,         to    be     followed      by    an

additional ten years of supervised release.



                                             2
            On     appeal,       Wells     challenges       only    the   subsequent

supervised release term that the court ordered.                       Specifically,

Wells contends that imposition of the additional ten-year term

of supervised release violates the Ex Post Facto Clause because

it is longer than the supervised release term he faced at the

time he committed the underlying violation of § 841(b)(1)(B). 1

We reject this argument and affirm.

            Wells     did      not   assert     this    constitutional        argument

before the district court; as such, we are limited to plain

error review.       See United States v. Olano, 507 U.S. 725, 732–33

(1993); United States v. Knight, 606 F.3d 171, 177 (4th Cir.

2010)    (reviewing      for     plain    error   defendant’s        ex   post   facto

challenge     to     the       particular       edition      of     the   Sentencing

Guidelines,      which     was   not     presented     in   the    district    court);


     1
        Taken   together,  the  relevant   statutory  provisions
authorize a four- to five-year term of supervised release for a
violation of § 841(b)(1)(B).     See 21 U.S.C. § 841(b)(1)(B)
(setting statutory maximum sentence at forty years’ imprisonment
and mandating the imposition of at least a four-year term of
supervised release); see also 18 U.S.C. § 3559(a)(2) (2012)
(designating any federal offense with a statutory maximum
sentence of twenty-five years to life as a Class B felony); 18
U.S.C. § 3583(b)(1) (2012) (authorizing a five-year maximum term
of supervised release for Class A or Class B felonies).
Comparatively, while there is a statutory minimum three-year
term of supervised release that must be imposed in conjunction
with a conviction under § 841(b)(1)(C), there is no upper limit
as to the term of supervised release that may be ordered.    See
21 U.S.C. § 841(b)(1)(C); United States v. Pratt, 239 F.3d 640,
647-48 (4th Cir. 2001).



                                            3
accord United States v. Woodward, 744 F.3d 488, 496 (7th Cir.

2014)       (reviewing    unpreserved           ex    post     facto      claim     for     plain

error).

               The Ex Post Facto Clause “bars application of a law

that changes the punishment, and inflicts a greater punishment,

than the law annexed to the crime, when committed.”                               Johnson v.

United      States,     529   U.S.       694,    699    (2000)      (internal         quotation

marks and alteration omitted).                  For a law to run afoul of the Ex

Post       Facto   Clause,    two    elements          must    be   present       —    it    must

“operate[ ] retroactively,” applying to conduct completed prior

to   its      enactment,      and    it     must       “raise[ ]       the    penalty       from

whatever the law provided when [the defendant] acted.”                                Id.

               Wells’    claim      fails       because       no    “new     law”      operated

retroactively at the revocation proceeding.                          Operative, instead,

was the same statutory provision to which Wells consented when

he accepted the Government’s offer to modify his initial charge

of conviction.           He agreed to this modification knowingly and

without       reservation.          As    such,      the      district       court     properly

applied        the      supervised         release         provisions         relevant        to

§ 841(b)(1)(C),          as   this       was    the     basis       for    Wells’      initial

conviction and sentence. 2


       2
       This is line with the general legal principle “that post-
revocation prison sentences are sentences for the original
federal crime, not punishment for the violation of the terms of
(Continued)
                                                4
            We thus agree with the Government’s threshold argument

that the Ex Post Facto Clause simply is not implicated here.

The   deviation   between       the   statutory      provision      Wells    violated

when he committed the underlying federal offense in December

2009, and the statutory provision utilized to later determine

his supervised release range, resulted from Wells’ acceptance of

the   Government’s      offer    to    reduce     his    charge,     “not    by   any

operation of law.”      (Appellee’s Br. at 13).

            Accordingly, we affirm the district court’s revocation

judgment.    We dispense with oral argument because the facts and

legal    contentions    are     adequately      presented      in   the     materials

before   this   court    and    argument     would      not   aid   the   decisional

process.

                                                                             AFFIRMED




supervised release.” United States v. Fareed, 296 F.3d 243, 247
(4th Cir. 2002) (citing Johnson, 529 U.S. at 700-01).



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