UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4803

DAYNA R. PATRICK LAYMAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-95-65-R)

Submitted: September 8, 1998

Decided: October 6, 1998

Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

John E. Lichtenstein, Charles M. Smith, Jr., LICHTENSTEIN &
FISHWICK, P.L.C., Roanoke, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, Joseph W. H. Mott, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Dayna Patrick Layman appeals from her sentence for conspiracy to
manufacture and distribute marijuana in violation of 21 U.S.C. § 846
(1994). For the following reasons, we vacate the district court's order
and remand for resentencing.

In December 1995, Layman pled guilty to the charged offense. At
Layman's first sentencing hearing on May 17, 1996, the district court
determined that her guideline range was six to twelve months impris-
onment and orally pronounced her sentence as nine months imprison-
ment followed by thirty-six months supervised release and a special
assessment. No written order of conviction was filed at that time. The
district court resentenced Layman twice with the final sentence being
thirty-six months probation, with nine months of home detention as
a condition of that probation. See USSG§ 5C1.1(c)(3).* On June 5,
1996, the district judge signed the written Judgment in a Criminal
Case reflecting the proceedings on June 4, 1996.

The Government appealed the sentence, seeking imposition of the
original sentence orally pronounced on May 17, 1996. In July 1996,
the Government moved to stay the sentence of home detention pend-
ing appeal. Layman opposed the motion and the district court denied
it in September 1996. Layman completed service of her sentence of
home detention before the Government's appeal was decided by this
court. The only question presented on appeal was whether the district
court had authority to modify Layman's sentence after it had been
orally pronounced on May 17, 1996. See United States v. Layman,
116 F.3d 105, 108 (4th Cir. 1997), cert. denied , ___ U.S. ___, 66
U.S.L.W. 3308 (U.S. Feb. 23, 1998) (No. 97-698).

On June 24, 1997, this court held that Layman's sentence was
imposed for purposes of Fed. R. Crim. P. 35 when the district judge
orally pronounced the sentence on May 17, 1996. See id. This court
vacated Layman's sentence and remanded with instructions to impose
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*U.S. Sentencing Guidelines Manual (1995).

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the sentence orally pronounced at the May 17 sentencing hearing. See
id. at 109.

Pursuant to the remand, Layman was resentenced in September
1997 to nine months imprisonment followed by thirty-six months
supervised release. Layman moved to stay the imposition of the sen-
tence to which the Government objected. The district court stayed the
imposition of the sentence pending the anticipated appeal. Layman
timely appealed.

On appeal, Layman contends that she has completed service of a
term of confinement authorized pursuant to the statute under which
she was convicted and execution of the sentence of nine months
imprisonment violates the Double Jeopardy Clause. We disagree.

As we held when considering the Government's appeal, the district
court did not have authority to modify Layman's sentence, except for
the reasons enunciated in Rule 35, after sentence was orally pro-
nounced in open court. See id. at 110. We adhere to that holding.

However, upon remand, the district court should have credited
Layman with the time she served on probation, including her time on
home detention. See United States v. Lominac, 144 F.3d 308, 317 (4th
Cir. 1998); United States v. McMillen, 917 F.2d 773, 777 (3d Cir.
1990). In Lominac, the district court sentenced the defendant to six
months imprisonment for violating his supervised release conditions
and tacked on a thirty-month term of supervised release based on 18
U.S.C. § 3583(h) (1994), which was enacted after the defendant com-
mitted his original offenses. See Lominac, 144 F.3d at 310-11. This
court held that the retrospective application of§ 3583(h) violated the
Ex Post Facto Clause and remanded for resentencing under the law
in place at the time the defendant committed his offense. See id. at
316. This court noted that, although a district court cannot vindic-
tively impose a higher sentence on remand, it can impose a higher
sentence and any sentence the defendant receives on resentencing
must be reduced by the time he has already served for violating his
supervised release. See id. at 317.

Under 18 U.S.C. § 3585(b)(1) (1994), the Attorney General,
through the Bureau of Prisons, credits a defendant for the time served

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in prison. See United States v. Wilson, 503 U.S. 329, 333 (1992).
However, probation cannot be credited under § 3585 because it is not
"official detention," which may be credited under this section. See
United States v. Insley, 927 F.2d 185, 186-87 (4th Cir. 1991). Because
the Attorney General cannot credit Layman for the time served on
probation, the district court must give Layman credit for that time
against any new prison sentence. See Lominac, 144 F.3d at 317.

This result is mandated by the Double Jeopardy Clause because the
interest behind the prohibition against multiple punishments for the
same offense is to ensure that the total punishment exacted does not
exceed that authorized by the legislature. See id. Thus, credit must be
given not only when a defendant, such as Layman, is resentenced fol-
lowing a new conviction but also when he is resentenced after a suc-
cessful challenge to his original sentence. See id. Otherwise, the
cumulative punishment imposed on Layman could exceed those
restraints on her liberty that are authorized by the law. See id. This
rule applies to terms of supervised release as well as imprisonment
because both are forms of punishment. See United States v. Dozier,
119 F.3d 239, 242 (3d Cir. 1997).

Lastly, in deciding to remand, we reject Layman's argument that
she has served all the time that she is legally required to serve for the
same reasons that we rejected the identical argument in Lominac. See
Lominac, 144 F.3d at 318.

Accordingly, we vacate the order of the district court and remand
for sentencing in conformity with this opinion. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

VACATED AND REMANDED

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