UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4511

TYRONE PATE, a/k/a Ty,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Jerome B. Friedman, District Judge.
(CR-92-78-A)

Submitted: December 29, 1999

Decided: January 13, 2000

Before MICHAEL and KING, Circuit Judges, and HAMILTON,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Jeffrey D. Zimmerman, Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Alan M. Salsbury, Assistant United
States Attorney, Norfolk, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Tyrone Pate appeals the district court's order revoking his term of
supervised release and imposing a six month prison sentence followed
by four years and six months of additional supervised release. Finding
that the district court's application of 18 U.S.C.A.§ 3583(h) (West
Supp. 1999) did not violate the Ex Post Facto Clause, we affirm the
decision of the district court.

The Ex Post Facto Clause prohibits laws that are retrospective and
that disadvantage the offender "by altering the definition of criminal
conduct or increasing the punishment for the crime." Lynce v. Mathis,
519 U.S. 433, 441 (1997) (citation omitted). Pate contends that the
district court did not have the authority to impose a new term of
supervised release after the revocation of his original term because
§ 3583(h) was passed on September 13, 1994, after the date of his
original crime.

Because Pate was convicted of a Class A felony under the law prior
to § 3583(h), Pate could have been sentenced to up to five years of
imprisonment for violating his supervised release term. See 18 U.S.C.
§ 3583(e)(3) (1994). After the enactment of§ 3583, Pate's sentence
for violating his supervised release could have been composed of
imprisonment or supervised release, but the two combined could not
have exceeded five years. See § 3583(h). We thus find that the appli-
cation of § 3583(h) to Pate did not increase the punishment he could
have received for his offenses and therefore did not disadvantage him.
See United States v. Lominac, 144 F.3d 308, 315 n.9 (4th Cir. 1998)
(noting, in dicta that no ex post facto violation occurs in context of
Class A felonies where punishment was imposed after a single revo-
cation of supervised release).

Pate argues that the Ex Post Facto Clause is violated nonetheless
because he is now exposed, in theory, to multiple revocations of
supervised release that could result in additional terms of imprison-
ment and supervised release. Because this case follows a single revo-
cation of Pate's original term of supervised release and the possibility
of future revocation is merely speculative, we find no violation of the

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Ex Post Facto Clause. See United States v. Withers, 128 F.3d 1167,
1170-72 (7th Cir. 1997), cert. denied, ___ U.S. ___, 67 U.S.L.W.
3231 (U.S. Oct. 5, 1998) (No. 97-8626) (noting that possible increase
in punishment resulting from future revocations is simply too theoret-

ical and speculative for an initial retroactive application of § 3583(h)
to constitute an ex post facto violation).1 But see United States v.
Collins, 118 F.3d 1394, 1397-98 (9th Cir. 1997) (finding a violation

of the Ex Post Facto Clause based on the "possibility of repeated vio-
lations of the conditions of successive supervised releases").

Accordingly, we affirm the decision of the district court. We dis-
pense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED
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1 In Lominac, this Court disagreed with Withers regarding the constitu-
tionality of the retroactive application of § 3583(h) to individuals con-
victed of Class B and C felonies. With respect to such individuals,
Lominac concluded that retroactive application of § 3583(h) increased
the total amount of time that their liberty could be restrained, in violation
of the Ex Post Facto Clause. Withers held to the contrary. While Lominac
and Withers disagree as to the constitutionality of the retroactive applica-
tion of § 3583(h) to individuals convicted of Class B and C felonies, both
the reasoning that underpins Withers as well as express dicta in Lominac
support a conclusion that retroactive application of§ 3583(h) is permissi-
ble with respect to individuals convicted of Class A felonies, who, like
Pate, suffer a single revocation of supervised release.




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