                       United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 03-2331
      ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        *
      v.                                *
                                        *
Carlton Earl Griner,                    *
                                        *
            Appellant.                  *

      ___________                           Appeals from the United States
                                            District Court for the Northern
      No. 03-2354                           District of Iowa.
      ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Lonnie Vernon Davis, Sr.               *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: October 21, 2003

                                 Filed: March 1, 2004
                                  ___________
Before MORRIS SHEPPARD ARNOLD, BOWMAN, and MURPHY, Circuit
      Judges.
                        ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Carlton Griner was convicted of possession of child pornography and
sentenced to imprisonment followed by a term of supervised release. His supervised
release was revoked after he violated its terms, and he was then sentenced to
imprisonment followed by a term of supervised release that included a stay in a
community-corrections facility. Lonnie Davis, Sr., pleaded guilty to possession of
child pornography and was sentenced to imprisonment followed by a term of
supervised release that also was to be served, in part, in a community-corrections
facility. On appeal, the defendants challenge the condition of supervised release
imposed by the district court1 that requires them to reside in a community-corrections
facility. We affirm.

       Because neither defendant objected to the condition of supervised release when
it was imposed, we review the sentence for plain error only. See United States v.
Ristine, 335 F.3d 692, 694 (8th Cir. 2003). Under the plain-error rule, a forfeited
error may be corrected if it is plain, affects the substantial rights of a defendant, and
" 'seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.' " United States v. Gillon, 348 F.3d 755, 757 (8th Cir. 2003) (quoting
United States v. Olano, 507 U.S. 725, 732 (1993) (internal quotations omitted)). In
order to be "plain," the error must be "clear under current law." United States v.
Montanye, 996 F.2d 190, 192 (8th Cir.1993) (en banc).




      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.

                                          -2-
      The sentencing court has broad discretion under 18 U.S.C. § 3583(d) to impose
conditions of supervised release that it deems appropriate. See United States v. Andis,
333 F.3d 886, 893 (8th Cir. 2003) (en banc), cert. denied, 124 S. Ct. 501 (2003).
According to § 3583(d), subject to certain considerations, a court may impose as a
condition of supervised release "any condition set forth as a discretionary condition
of probation in [18 U.S.C.] section 3563(b)(1) through (b)(10) and (b)(12) through
(b)(20), and any other condition it considers to be appropriate."

       The defendants rely on the failure of § 3583(d) to cross-reference as a
discretionary condition of supervised release subsection (b)(11) of § 3563, which
currently requires a probationer to "reside at, or participate in the program of, a
community corrections facility ... for all or part of the term." According to the
defendants, the absence of a specific reference to subsection (b)(11) prohibited the
district court from requiring them to live in a community-corrections facility during
their supervised release. Although this argument may have some surface appeal, after
a closer examination of the applicable law we conclude that the district court was
authorized to impose the condition.

       When Congress passed § 3583(d) in 1984, that provision referred to specific
subsections of § 3563(b) in order to incorporate certain discretionary conditions of
probation as discretionary conditions of supervised release. Sentencing Reform Act
of 1984, Pub. L. No. 98-473, Title II, ch. 2, § 212(a)(2), 98 Stat. 1987, 1993-94,
1999-2000 (codified at 18 U.S.C. §§ 3563(b), 3583(d) (Supp. 1986)). As originally
enacted the statute allowed the sentencing court (subject to considerations not
relevant here) to impose as a condition of supervised release "any condition set forth
as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and
(b)(12) through (b)(19)." Id., 98 Stat. at 1999-2000. At that time, § 3563(b)(12)
permitted a court to require a probationer to "reside at, or participate in the program
of, a community corrections facility for all or part of the term." Id., 98 Stat. at 1993.



                                          -3-
Thus Congress specifically included community-corrections confinement as a
discretionary condition of supervised release.

        In 1996, as part of the Mandatory Victims Restitution Act, Title IIA of the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,
§ 203(2), 110 Stat. 1227, Congress amended the discretionary conditions of probation
listed in § 3563(b) by removing one subsection and renumbering those that remained;
as a result, the community-confinement subsection shifted from (b)(12) to (b)(11).
Since this renumbering, Congress has not changed the reference in § 3583(d) to
subsection (b)(12), and § 3583(d) continues to omit any reference to subsection
(b)(11), although § 3563(b)(11) is now the subsection allowing a court to require a
probationer to reside in a community-corrections facility. We believe, however, that
the defendants seek to prove too much by challenging their condition of supervised
release based upon what was essentially a bookkeeping change to the probation
statute.

      Our conclusion is supported by what the Supreme Court has described as a
"well-settled canon" of statutory construction:

      'Where one statute adopts the particular provisions of another by a
      specific and descriptive reference to the statute or provisions adopted,
      the effect is the same as though the statute or provisions adopted had
      been incorporated bodily into the adopting statute. ... Such adoption
      takes the statute as it exists at the time of adoption and does not include
      subsequent additions or modifications by the statute so taken unless it
      does so by express intent.' The weight of authority holds this rule ...
      respecting two separate acts applicable where, as here, one section of a
      statute refers to another section which alone is amended.

Hassett v. Welch, 303 U.S. 303, 314 (1938) (quoting 2 Sutherland on Statutory
Construction, 787-88 (2d ed. 1904) (footnotes omitted); cf. Clark v. Crown Const.
Co., 887 F.2d 149, 152 & n.17 (8th Cir. 1989).

                                         -4-
       When enacted by Congress § 3583(d) adopted "particular provisions" of
§ 3563(b) by "a specific and descriptive reference," and therefore we believe that it
was as if the language of those subsections was made a part of § 3583(d). In this
way, § 3583(d) included the language of subsection (b)(12) as it was then written to
permit community-corrections confinement. Although Congress has renumbered the
subsections of § 3563(b), Congress has not re-enacted § 3683(d) since then, and we
have not located (nor have defendants pointed us to) anything in the statutes or
legislative history to indicate that Congress has removed from § 3583(d) the
community-confinement condition that was incorporated into the statute when it was
passed. For these reasons, we believe that § 3583(d) continues to include community-
corrections confinement as a discretionary condition of supervised release, and we
conclude that the district court did not commit error, plain or otherwise, when it
imposed that condition here.

      Accordingly, we affirm the judgments of the district court.
                     ______________________________




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