                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-4037
                                    ___________

United States of America,                *
                                         *
            Appellee,                    *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of South Dakota.
Duane Michael Brings Plenty,             *
                                         *    [TO BE PUBLISHED]
            Appellant.                   *
                                    ___________

                            Submitted: July 26, 1999
                                Filed: September 1, 1999
                                    ___________

Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

PER CURIAM.

       When a defendant violates one or more conditions of supervised release, the
district court may revoke supervised release and sentence the defendant to a term of
imprisonment and, if that prison term is less than the maximum, a further term of
supervised release. See 18 U.S.C. §§ 3583(e)(3) and (h). The statutes prescribe
maximum terms of imprisonment and supervised release. This appeal raises important
issues of first impression concerning how to calculate those maximum terms when the
offender being sentenced has served a prior revocation prison term.
       Duane Michael Brings Plenty was sentenced to fifty-seven months in prison and
three years supervised release after pleading guilty to arson of a dwelling in Indian
country, a Class C felony. See 18 U.S.C. §§ 81, 1153, 3559(a)(3). He served his
prison term and began supervised release. It was revoked, and he was sentenced to an
additional six months in prison and a further term of supervised release. After serving
the revocation prison term, he again began supervised release and again violated its
conditions. After Brings Plenty admitted to a Grade C violation, see U.S.S.G.
§ 7B1.1(a)(3), p.s., the district court sentenced him to twelve months in prison and two
years supervised release. Brings Plenty appeals this sentence. We affirm the prison
term but conclude that the supervised release term exceeds the statutory maximum.
Accordingly, we remand to reduce that portion of the revocation sentence.

       Brings Plenty first argues the district court abused its discretion in imposing a
twelve-month revocation prison term for his single admitted violation. See United
States v. Grimes, 54 F.3d 489, 492 (8th Cir. 1995) (standard of review). We disagree.
This was his second failure to comply with the conditions of supervised release; in this
case, he was terminated from a community corrections center residency program for
refusing to maintain employment. The court’s remarks during the revocation hearing
evince consideration of the relevant factors in 18 U.S.C. § 3553(a) and demonstrate
that the sentence imposed was a carefully considered exercise of discretion. See
United States v. Carr, 66 F.3d 981, 983 (8th Cir. 1995).

       Alternatively, Brings Plenty argues the district court’s revocation sentence
exceeds the authorized statutory maximums because the court failed to take into
account Brings Plenty’s prior revocation prison sentence. This is a more difficult issue,
one we review de novo. We look first at the prison term portion of the present
revocation sentence. Section 3583(e)(3) provides “that a defendant whose term is
revoked under this paragraph may not be required to serve more than [2] years in prison
if the offense that resulted in the term of supervised release . . . is a class C or D
felony.” Thus, Brings Plenty’s revocation prison sentence may be no more than two

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years. The statute expressly provides that “time previously served on postrelease
supervision” does not count against the prison term that may be imposed upon
revocation, but the statute is silent regarding time previously served in prison under a
prior revocation sentence. The government concedes that all revocation prison
sentences should be aggregated in calculating this two-year maximum; that is, the six
months Brings Plenty served in prison under his first revocation sentence should be
counted in calculating his two-year maximum prison sentence under § 3583(e)(3). We
agree. However, while this is an important issue, it does not help Brings Plenty’s
appeal because the twelve-month revocation prison term he appeals plus the six months
served in prison under the prior revocation sentence total only eighteen months, well
within the two-year statutory maximum for a Class C felony under § 3583(e)(3).

       The aggregation issue becomes more significant to Brings Plenty when we turn
to the supervised release portion of his revocation sentence. Under § 3583(h), if the
court revokes supervised release and sentences defendant to the maximum authorized
prison term, it may not impose an additional term of supervised release. See United
States v. St. John, 92 F.3d 761, 765-66 (8th Cir. 1996). When the court imposes a
lesser prison sentence together with an additional term of supervised release, the length
of the supervised release portion of the revocation sentence -

      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.

Section 3583(h) (emphasis added). We conclude that the plain meaning of the
reference to “any term of imprisonment” includes the prison term in the current
revocation sentence together with all prison time served under any prior revocation
sentence(s). Here, Brings Plenty’s maximum supervised release term for his original
conviction was three years. See 18 U.S.C. § 3583(b)(2). His aggregate revocation


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prison sentence is eighteen months. The length of the additional term of supervised
release that may now be imposed is three years less eighteen months, or eighteen
months. Thus, his twenty-four-month term of supervised release exceeds the applicable
statutory maximum.

       We note that our conclusions find strong support in the legislative history of the
amendments to § 3583 enacted in 1994. The sponsor of an earlier bill containing nearly
identical provisions submitted the following explanation of their practical effect:

      For example, in the case of a Class C felony for which the maximum
      supervised release term is three years, a defendant who is revoked and re-
      imprisoned for 18 months could be ordered to serve as much as 18
      additional months on supervised release (36-month maximum term of
      supervised release minus 18 months imprisonment equals 18 months
      possible re-release supervision). If the same defendant was again
      revoked, he could be re-imprisoned for not exceeding six months (24-
      month cap minus 18 months previously-served imprisonment equals 6
      months allowable imprisonment) and if so imprisoned, could not
      thereafter be placed on supervision (because the two-year imprisonment
      cap would have been reached). Thus, under [the amendments], a
      defendant would always be credited for incarceration time against both
      the cap on re-imprisonment and the maximum authorized period of
      supervised release.

137 Cong. Rec. S7769-72 (daily ed. June 13, 1991); see United States v. Beals, 87
F.3d 854, 857-58 (7th Cir. 1996);1 United States v. Walker, 32 F. Supp. 2d 1305 (M.D.
Ala. 1998).




      1
       Beals was overruled in part on other grounds in United States v. Withers, 128
F.3d 1167, 1172 (7th Cir.1997), cert. denied, 119 S. Ct. 79 (1998).
                                           -4-
      The November 2, 1998, judgment of the district court is reversed and the case
is remanded with instructions to reduce the supervised release portion of Brings
Plenty’s revocation sentence to eighteen months.

      A true copy.

            Attest:

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




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