                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-2567
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         *
      v.                                 * Appeal from the United States
                                         * District Court for the
Oswaldo Francis Pozo,                    * Western District of Missouri.
                                         *
             Appellant.                  * [UNPUBLISHED]
                                    ___________

                          Submitted: October 25, 2002
                              Filed: November 7, 2002
                                   ___________

Before MORRIS SHEPPARD ARNOLD, MURPHY, and BYE, Circuit Judges.
                         ___________

PER CURIAM.

       Oswaldo Francis Pozo appeals the sentence imposed by the district court1 upon
revocation of his supervised release. Pozo waived his right to an evidentiary hearing
and stipulated to violating conditions of his supervised release. Thereafter, the court
revoked Pozo’s supervised release and sentenced him to 7 months imprisonment and
2 years supervised release.




      1
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
      On appeal, Pozo argues the district court violated the Ex Post Facto Clause by
imposing a revocation sentence that included both a term of imprisonment and a term
of supervised release, because 18 U.S.C. § 3583(h), which authorizes supervised
release upon revocation of supervised release, was not in effect at the time Pozo’s
original offense was committed. This argument is foreclosed, however, by Johnson
v. United States, 529 U.S. 694, 702, 713 (2000) (although § 3583(h) does not apply
retroactively to offenses committed before September 13, 1994, 18 U.S.C.
§ 3583(e)(3) already allows district courts to impose additional term of supervised
release following reimprisonment; as § 3583(h) does not apply retroactively, ex post
facto question does not arise). We note that the total of the terms of imprisonment
and supervised release imposed upon revocation of Pozo’s supervised release (31
months) does not exceed his original 60-month supervised-release term. See United
States v. St. John, 92 F.3d 761, 766 (8th Cir. 1996) (maximum period of time
defendant’s freedom can be restrained upon revocation of supervised release is
capped by original supervised-release term).

      Accordingly, we affirm.

      A true copy.

            Attest:

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




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