                                                     [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT
                                               U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                          August 30, 2005
                             No. 05-10379                THOMAS K. KAHN
                         Non-Argument Calendar               CLERK
                       ________________________

                   D. C. Docket No. 01-06025-CR-WJZ


UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

     versus

NEESHAN PETERS,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                            (August 30, 2005)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
       Neeshan Peters appeals his sentence of 24 months’ imprisonment and 12

months’ supervised release, imposed after he violated the terms of his supervised

release. We vacate and remand for resentencing.

       Peters argues the sentence violates the ex post facto clause of the U.S.

Constitution. He maintains the district court was required to apply the version of

18 U.S.C. § 3583(h) in effect at the time of his underlying criminal conduct, which

permitted a sentencing court to impose a new term of supervised released only

when the term of imprisonment imposed was less than the authorized maximum

term of imprisonment.

       Because Peters objects to the district court’s application of the amended

version of § 3583 for the first time on appeal, we apply plain-error review. See

United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003). To satisfy the

plain-error standard, we must find (1) the district court committed “error,” (2) the

error was plain or obvious, and (3) the error “affected substantial rights” in that the

error was prejudicial and not harmless. United States v. Olano, 113 S. Ct. 1770,

1777–78 (1993). If these criteria are met, we may, in our discretion, correct the

plain error if it “‘seriously affect[s] the fairness, integrity, or public reputation of

judicial proceedings.’” Id. at 1779 (citation omitted).




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      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, 120 S. Ct. 1795, 1800 (2000)

(citation omitted). To prevail on the type of ex post facto claim raised by Peters, he

“must show both that the law he challenges operates retroactively (that it applies to

conduct completed before its enactment) and that it raises the penalty from

whatever the law provided when he acted.” Id. Finally, because postrevocation

penalties relate to the original offense, sentencing a defendant under a version of

§ 3583 amended after the original offense would constitute retroactive application

of that section. See id. at 1801.

      At the time of Peters’s underlying offense, § 3583(h) provided:

      (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.

18 U.S.C. § 3583(h) (2001) (emphasis added). This section was amended in 2003

by striking the emphasized language. See 18 U.S.C. § 3583 (as amended by the




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Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act

of 2003 (PROTECT Act), Pub. L. No. 108-21 § 101(1), 117 Stat. 650).

      The Government concedes the district court committed error by violating the

ex post facto clause because (1) it applied the amended version of § 3583(h) where

Peters’ underlying offense was completed before the provision was amended; and

(2) the application of the amended version raised the penalty by allowing the court

to impose a term of supervised release where the maximum term of imprisonment

was imposed. The Government acknowledges this error was plain and affected

Peters’ substantial rights but argues the sentence does not “seriously affect the

fairness, integrity, or public reputation of judicial proceedings.” We disagree.

Because the district court imposed a sentence that exceeded the sentence permitted

under the applicable statute, we conclude the court’s error seriously affected the

fairness, integrity, or public reputation of judicial proceedings. Accordingly, we

vacate and remand for resentencing under the appropriate version of § 3583(h).

      VACATED AND REMANDED.




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