          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                  FILED
                                                                October 15, 2007
                               No. 06-40420
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk


UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

v.

EDWARD D. GARCIA,

                                          Defendant-Appellant.



                 Appeal from the United States District Court
                      for the Southern District of Texas
                            No. 5:02-CR-693-ALL




Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*


      Edward Garcia appeals his sentence, arguing that it exceeds the statutory
maximum because it includes a three-year term of supervised release in addition
to a two-year term of imprisonment. The government concedes error. The par-


      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                  No. 06-40420

ties request that this court modify the judgment by vacating the additional term
of supervised release and otherwise affirm the sentence.
      A district court may revoke a term of supervised release and require a de-
fendant to return to prison. 18 U.S.C. § 3583(e)(3). Where the offense that re-
sults in the term of supervised release is a class D felony, as was Garcia’s 2002
drug offense, the defendant may not be required to serve more than two years
in prison. Id.; see 18 U.S.C. § 3559(a)(3); 21 U.S.C. § 841(b)(1)(D).
      Under the provision of § 3583(h), as that section provided at the time of
Garcia’s drug offense in 2002, the district court was also permitted to impose a
term of supervised release to be served after imprisonment, but only where the
term of imprisonment was less than the maximum term of imprisonment author-
ized under § 3583(e)(3). Although § 3583(h) has since been amended; the amend-
ment will not be applied retroactively absent a plain statement that Congress
so intended. See Johnson v. United States, 529 U.S. 694, 702-03 (2000).
      The parties correctly argue that, because Garcia was sentenced to the
maximum term of imprisonment under § 3583(e)(3), the district court was pro-
hibited under the applicable version of § 3583(h) from imposing a subsequent
term of supervised release.      Accordingly, we MODIFY the judgment by
VACATING the three-year term of supervised release, and we AFFIRM the
judgment AS MODIFIED.




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