                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-1333
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Northern District of Iowa.
Thomas Arthur Palmer,                  *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: April 14, 2004

                                 Filed: August 24, 2004
                                  ___________

Before LOKEN, Chief Judge, WOLLMAN, HANSEN, MORRIS SHEPPARD
      ARNOLD, MURPHY, BYE, RILEY, SMITH, and COLLOTON, Circuit
      Judges.
                             ___________

WOLLMAN, Circuit Judge.

      We vacated our prior panel opinion in this case, United States v. Palmer, 77
Fed. Appx. 919 (8th Cir. 2003) (per curiam), and granted rehearing en banc to
reconsider the interpretation of 18 U.S.C. § 3583 advanced in United States v. St.
John, 92 F.3d 761 (8th Cir. 1996). We now overrule St. John’s interpretation and
affirm the sentence imposed by the district court.
                                           I.

       On April 11, 2000, Thomas Palmer pleaded guilty to three counts of
threatening to use a weapon of mass destruction to blow up certain federal agencies
and one count of mailing a threat to blow up a United States Post Office. 18 U.S.C.
§§ 2332a(a)(3); 844(e). The former convictions were class A felonies, subjecting
Palmer to a maximum penalty of life imprisonment and up to five years of supervised
release. See 18 U.S.C. §§ 2332a(a), 3559(a)(1), 3583(b). The district court1 departed
upward from the range specified in the United States Sentencing Guidelines and
sentenced Palmer to 27 months of imprisonment, to be followed by 36 months of
supervised release.

        Palmer completed his prison term in 2002 and began serving his period of
supervised release. Several months into supervision, he violated the conditions of
that release. The district court2 then revoked Palmer’s supervised release and
imposed 12 months of imprisonment and another 36 months of supervised release –
an aggregate revocation sentence of 48 months – 12 months longer than Palmer’s
initial term of supervised release. Palmer appeals, arguing that this longer term is
illegal.

                                          II.

       We review the legality of Palmer’s revocation sentence de novo, United States
v. Brings Plenty, 188 F.3d 1051, 1053 (8th Cir. 1999) (per curiam), a matter that turns
on construction of 18 U.S.C. § 3583. Prior to 1994, § 3583(e)(3) provided that upon
revocation a district court could require a defendant to “serve in prison all or part of

      1
       The Honorable Michael J. Melloy, now a member of this Court.
      2
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.

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the term of supervised release without credit for time previously served on postrelease
supervision . . . .” Id. Our court interpreted this section to authorize imposition of
both a term of imprisonment and a new term of supervised release upon revocation
if the two terms, in aggregate, did not exceed the total term of supervised release
initially imposed. See United States v. Krabbenhoft, 998 F.2d 591, 594 (8th Cir.
1993); United States v. Schrader, 973 F.2d 623, 624-25 (8th Cir. 1992). This was a
minority position joined only by the First Circuit, see United States v. O’Neil, 11 F.3d
292, 294, 301 (1st Cir. 1993), as most other circuits held that district courts could
require either imprisonment or continued supervised release, but not both. See e.g.,
United States v. Truss, 4 F.3d 437, 439 (6th Cir. 1993) (collecting cases).

       In the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No.
103-322, § 110505, 1994 U.S.C.C.A.N. (108 Stat.) 1796, 2017, Congress enacted
new statutory language governing imposition of supervised release following
revocation. Among other things, the Act created an entirely new subsection, which
explicitly permits district courts to impose both imprisonment and a new term of
supervised release if the new term does “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.” 18 U.S.C. § 3583(h) (emphasis added). The Act also changed
subsection (e)(3) to specify that, within limitations, revocation courts may require
imprisonment for “all or part of the term of supervised release authorized by statute
for the offense that resulted in such term of supervised release . . . .” Id. § 3583(e)(3)
(emphasis added).

       Our court initially confronted this language in United States v. St. John, 92
F.3d 761 (8th Cir. 1996), a case in which the defendant was convicted and sentenced
under the pre-1994 scheme but violated his supervised release and faced revocation
after enactment of the new language set forth above. St. John acknowledged that the
new subsection (h) could peg the available new term of supervised release upon

                                           -3-
revocation to the maximum term of supervised release authorized by statute for the
offense of conviction. Id. at 766. Concerned that this reading would generate an ex
post facto problem, however, St. John chose to follow our prior law, construing the
words “term of supervised release” to mean “the term of supervised release in the
original sentence rather than the maximum authorized term of supervised release.”
Id. Although the United States Supreme Court subsequently eliminated the ex post
facto concern by holding that § 3583(h) does not apply retroactively, see Johnson v.
United States, 529 U.S. 694, 702-03 (2000), our court has continued to acknowledge
and apply St. John’s construction of the 1994 changes despite language in Johnson
casting doubt on the viability of that reading.3 See e.g., United States v. Pozo, 50
Fed. Appx. 329 (8th Cir. 2002) (per curiam); United States v. Chaddock, 49 Fed.
Appx. 88 (8th Cir. 2002) (per curiam); but cf. United States v. Touche, 323 F.3d 1105
(8th Cir. 2003) (upholding aggregate revocation sentence of 45 months despite initial
supervised release term of 36 months where defendant did not appeal aggregate
length of revocation sentence).

       Having considered the matter en banc, we conclude that St. John’s
interpretation of the 1994 act is not consistent with the language of the statute. In
subsections (e)(3) and (h), the words “term of supervised release” are now followed
by unambiguous language referencing the term authorized by statute for the offense
of conviction, not the term of supervised release initially imposed by the district
court. Subsection (b) of the statute is captioned “[a]uthorized terms of supervised
release,” and provides for specific maximum periods of supervised release for each
class of felony conviction. Conversely, no statutory language indicates that new
terms of supervised release are cabined by the supervised release term originally
imposed. The only explicit limitations include those on the available terms of

      3
       The Court mentioned in Johnson that “[a]s it was written before the 1994
amendments, subsection [(e)(3)] did not provide (as it now does) that the court could
revoke the release term and require service of a prison term equal to the maximum
authorized length of a term of supervised release.” 529 U.S. at 705.

                                         -4-
imprisonment specified in subsection (e)(3) and the subsection (h) requirement that
the new term of supervised release not exceed the term statutorily authorized for the
offense of conviction (minus any revocation terms of imprisonment).

       If allowed to stand, St. John would also contribute to a circuit conflict. In
United States v. Pla, 345 F.3d 1312 (11th Cir. 2003), the Eleventh Circuit recently
concluded that “the language of § 3583(e)(3), (g) and (h) makes clear that the length
of additional supervised release and [a] prison term upon revocation is not bound by
the original term of supervised release but by the class of felony of which the
[defendant] is convicted.” Id. at 1315. We agree, and given both the clarity of the
statutory language and the importance of intercircuit uniformity in revocation
sentencing, we overrule St. John’s contrary reading.

       We do not agree with Palmer’s suggestion that our new reading places us at
odds with the Seventh Circuit’s decision in United States v. Russell, 340 F.3d 450
(7th Cir. 2003). The defendant in Russell, as in St. John, was convicted and
sentenced prior to the 1994 changes. Russell thus involved a determination of the
appropriate sentence authorized by the earlier version of subsection (e)(3), not the
sentence authorized by the language contained in the current versions of (e)(3) and
(h). If anything, various statements in other circuit opinions interpreting § 3583(h),
including those of the Seventh Circuit, suggest that those courts would endorse our
plain-meaning approach. See United States v. Moody, 277 F.3d 719, 721 (5th Cir.
2001) (noting that “[t]he plain language of § 3583(h) directs courts to look to the
‘statute for the offense that resulted in the original term of supervised release.’”);
United States v. Cade, 236 F.3d 463, 466 (9th Cir. 2000) (noting that “[i]f the court
imposes a term of imprisonment that is less than [the maximum term authorized in §
3583(e)(3)] . . . it also may require the defendant to serve an additional term of
supervised release that cannot exceed . . . the maximum term authorized by [§
3583(b)] . . . .”); United States v. Shorty, 159 F.3d 312, 316 (7th Cir. 1998) (same);



                                         -5-
United States v. Dozier, 119 F.3d 239, 242 (3rd Cir. 1997) (same), abrogated on other
grounds in Johnson, 529 U.S. at 699 n. 3, 702.

      We read 18 U.S.C. §§ 3583(e)(3) and (h) to mean what they plainly say. Upon
revocation, a defendant may be sentenced to both imprisonment and a further term of
supervised release. 18 U.S.C. § 3583(h). For those defendants whose offense of
conviction occurred after the 1994 changes, the available supervised release term is
not measured by the term initially imposed by the district court, see St. John, 92 F.3d
at 766, but by the term authorized in 18 U.S.C. § 3583(b) for the offense of
conviction, minus the aggregate amount of any revocation terms of imprisonment.
18 U.S.C. § 3583(h); Johnson, 529 U.S. at 702 (“§ 3583(h) applies only to cases in
which that initial offense occurred after the effective date of the amendment,
September 13, 1994.”); Brings Plenty, 188 F.3d at 1054 (concluding that all
revocation terms of imprisonment must be aggregated when calculating the remaining
available term of supervised release).

      The district court chose to imprison Palmer for 12 months upon revocation.
Under § 3583(h), the district court was empowered to impose a new term of
supervised release that could not exceed the five-year maximum term of supervised
release authorized in § 3583(b) for Palmer’s offenses of conviction, minus the 12-
month term of imprisonment imposed on revocation. The maximum available term
of supervised release was the difference of the two – 48 months. Because the 36-
month term of supervised release imposed falls well within that boundary, we affirm
the sentence.
                       ______________________________




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