                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                FEB 7 2001
                                   TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                          No. 00-4085
 KIMBERLY ANN TYROLT,                                  (D.C. No. 00-CR-37-B)
                                                              (D. Utah)
          Defendant-Appellant.


                                ORDER AND JUDGMENT*


Before HENRY, BALDOCK, and LUCERO, Circuit Judges.**


      In November 1996, Defendant pled guilty to false representation of a social

security number in violation of 42 U.S.C. § 408(a)(7)(B). The district court sentenced

Defendant to eighteen months imprisonment followed by thirty-six months of supervised

release. In April 2000, Defendant admitted six violations of the terms and conditions of

his supervised release. The district court revoked Defendant’s current term of supervised


      *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(A)(2). The case is therefore
ordered submitted without oral argument.
release and sentenced her to eighteen months imprisonment followed by eighteen months

supervised release. Defendant appeals her sentence. We exercise jurisdiction pursuant to

28 U.S.C. § 1291 and 18 U.S.C. § 3742, and affirm.

          Under 18 U.S.C. § 3583(e)(3), upon revocation of supervised release, the

maximum term of imprisonment is two years where the original offense was a Class D

felony. Where the original offense was a Class E felony, however, the maximum term of

imprisonment upon revocation of supervised release is one year. The district court

determined Defendant’s original § 408 offense was a Class D felony and sentenced

Defendant accordingly. 18 U.S.C. § 3559(a)(4) classifies a Class D felony as a felony

with a maximum term of imprisonment of “less than ten years but five or more years.” A

Class E felony, on the other hand, carries a maximum term of “less than five years but

more than one year.” Id. § 3559(a)(5).1 Defendant’s original offense under 42 U.S.C.

§ 408(a)(7)(B) carried a statutory maximum term of imprisonment of “not more than five

years.”

          Defendant argues the original § 408 offense was a Class E felony. Specifically,



          1
              18 U.S.C. § 3559(a) provides in relevant part:

            “[a]n offense that is not specifically classified by a letter grade in the section
          defining it, is classified if the maximum term of imprisonment authorized is–

          (4) less than ten years but five or more years, as a Class D felony;
          (5) less than five years but more than one year, as a Class E felony.”


                                                  2
Defendant argues the phrase “not more than five years” means four years and 364 days.

Contrary to Defendant’s argument, the plain language of § 408(a)(7)(B), “not more than

five years,” clearly includes a maximum term of imprisonment of exactly five years.

Therefore, Defendant’s § 408 conviction is a Class D felony. Defendant concedes that if

we determine the original offense is a Class D felony, the district court properly sentenced

Defendant under 18 U.S.C. § 3583(e)(3) and (h). We agree. Accordingly, Defendant’s

sentence is

       AFFIRMED.

                                          Entered for the Court,



                                          Bobby R. Baldock
                                          Circuit Judge




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