                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-3221
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of South Dakota.
J.W.T.,                                *
                                       *
            Appellant.                 *
                                   __________

                             Submitted: March 9, 2004

                                 Filed: May 21, 2004
                                  ___________

Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and COLLOTON, Circuit
      Judges.
                         ___________

COLLOTON, Circuit Judge.

      J.W.T., a juvenile, appeals from the sentence imposed after revocation of his
probation. He argues that the district court erred by relying on an amendment to 18
U.S.C. § 5037, which was enacted after his original act of juvenile delinquency, as
authority to impose a period of "juvenile delinquent supervision" following the
revocation of probation. We reverse.
                                           I.

       On February 18, 2002, J.W.T. struggled with and fled from a Bureau of Indian
Affairs police officer who was attempting to arrest him. J.W.T. eventually was
apprehended, and he pleaded guilty to assaulting a federal officer in violation of 18
U.S.C. §§ 111(b) and 5032. On December 12, 2002, the district court adjudicated
J.W.T. a delinquent, and placed him on probation until age 19. The government
placed J.W.T. in a drug treatment program in South Dakota, but he absconded briefly
from the facility on May 13, 2003. When the treatment staff discharged J.W.T. for
this violation of program rules, he was placed in a different facility. On June 1, 2003,
J.W.T. ran away yet again, and he was arrested in Utah in July 2003.

       The district court held a probation revocation hearing on July 29, 2003. J.W.T.
admitted that he failed to notify his probation officer prior to a change of residence,
and that he failed to reside in a community corrections center as required. The district
court revoked J.W.T.'s probation, ordered a supplemental presentence report, and set
a dispositional hearing.

      The supplemental presentence report noted that 18 U.S.C. § 5037 authorized
the court to order a period of juvenile delinquent supervision to follow official
detention. The pertinent provision of § 5037 was enacted on November 2, 2002, as
§ 12301 of the 21st Century Department of Justice Appropriations Authorization Act.
See Pub. L. No. 107-273, 116 Stat. 1758. Thus, the amendment authorizing juvenile
delinquent supervision was enacted after J.W.T.'s underlying act of delinquency, but
before he violated the conditions of probation.

      J.W.T. objected to a term of supervision. He argued that because the statutory
amendment was passed after the date of his underlying act of delinquency, the court
could not order a term of supervision as part of the sanction imposed after the
revocation of probation. Rejecting this contention, the district court committed

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J.W.T. to official detention for 14 months, and imposed a term of judicial delinquent
supervision, which the judgment referred to as "supervised release," until J.W.T.'s
21st birthday.

                                           II.

       It is uncontested that at the time of J.W.T.'s act of juvenile delinquency in
February 2002, the district court could not order a term of supervised release after a
period of official detention. It is also clear that the November 2002 amendment to 18
U.S.C. § 5037 authorized district courts to impose supervised release, and that the
amendment was enacted after J.W.T. committed the violation of probation that led to
his resentencing. There is disagreement, however, as to whether the imposition of
supervised release should be considered a sanction for the original act of delinquency
(in which case the amendment would be applied retrospectively), or for the violation
of probation (in which case the amendment need be applied only prospectively). The
district court concluded that it was sentencing J.W.T. for a probation violation that
occurred after the effective date of the amendment, such that imposition of supervised
release was authorized by statute and consistent with the Ex Post Facto Clause of the
Constitution.

       The Supreme Court's decision in Johnson v. United States, 529 U.S. 694
(2000), however, makes clear that the term of supervised release must be considered
part of the penalty for J.W.T.'s original act of delinquency. In Johnson, the Sixth
Circuit had disposed of an ex post facto challenge by holding that revocation of
supervised release merely imposed punishment for violating the conditions of
supervised release, rather than for the original offense. Id. at 699-700. On this
theory, "if the violation of the conditions of supervised release occurred after the
[statutory change], . . . the new law could be given effect without applying it to events
before its enactment." Id. at 700. The Supreme Court rejected that logic, noting the
"serious constitutional questions that would be raised by construing revocation and

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reimprisonment as punishment for the violation of the conditions of supervised
release." Id. Accordingly, Johnson holds that post-revocation penalties should be
attributed to the "original offense." Id. at 701. Johnson involved penalties imposed
after revocation of supervised release, as opposed to revocation of probation, but we
see no basis to treat these situations differently.

       The government does not adopt the district court's view, but argues that section
5037 was not applied retrospectively for a different reason. The government asserts
that because the amendment was enacted before the disposition of J.W.T.'s original
act of delinquency in December 2002, even though the change became effective after
the act of delinquency in February 2002, the district court's application of the
amendment concerning supervised release was not retrospective. The relevant date
for determining whether the amendment is retrospective, however, is the date of the
original offense or act of delinquency. The Supreme Court made this point
abundantly clear in Miller v. Florida, 482 U.S. 423, 427, 430-31 (1987), where it
invalidated state sentencing guidelines that went into effect between the date of the
defendant's offense and the date of his sentencing. We thus reject the government's
position.

      Because the term of supervised release is a sanction for J.W.T.'s original act of
delinquency committed in February 2002, we must address whether Congress
intended the November 2002 amendment to apply retroactively. If so, we must then
consider whether retroactive application of the statute to J.W.T. violates the Ex Post
Facto Clause. We review these legal questions de novo.

       The Supreme Court in Johnson reaffirmed that "one of the most basic
presumptions of our law" is that "legislation, especially of the criminal sort, is not to
be applied retroactively." 529 U.S. at 701. Among other things, this presumption
reduces the potential for conflict between legislation and the Ex Post Facto Clause.
In light of this presumption, the Court explained that a statute burdening private

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interests will be deemed prospective in application absent a "clear statement" that
Congress intended retroactive effect. Id.

       In Johnson, the Court was confronted with a statute that authorized the district
court to impose a term of supervised release following the reimprisonment of an
offender who had violated the conditions of an initial term of supervised release. Id.
at 698-99. The Court found nothing in the statute to suggest that Congress intended
the amendment to apply retroactively. Thus, the Court applied the "general rule" that
a statute takes effect on the date of its enactment, and declined to give the sentencing
change retroactive effect. Id. at 702.

       In this case, we likewise see nothing to indicate that Congress intended the
November 2002 amendments to 18 U.S.C. § 5037 to be retroactive. The subtitle
concerning juvenile disposition hearings, which added the authorization for
supervised release, specifies no effective date. The general rule is that when a statute
has no effective date, "absent a clear direction by Congress to the contrary, [it] takes
effect on the date of its enactment." Gozlon-Peretz v. United States, 498 U.S. 395,
404 (1991). Therefore, we find no clear statement that Congress intended the
amendment to apply retroactively, and we hold that the amendment authorizing
juvenile delinquent supervision does not apply to acts of delinquency committed prior
to November 2, 2002.

      Because 18 U.S.C. § 5037 did not provide for a term of juvenile delinquent
supervision at the time of J.W.T.'s original act of delinquency, a sentence of
supervised release may not be imposed. Accordingly, we vacate the term of
supervised release, and remand to the district court for entry of an amended judgment
consistent with this opinion.
                       ______________________________




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