                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAY 18 2000
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                       No. 99-1328
 ROBERT DURFEE,                                     (D.C. No. 90-CR-105-Z)
                                                           (D.Colo.)
           Defendant-Appellant.


                                 ORDER AND JUDGMENT       *




Before SEYMOUR , Chief Judge, EBEL and BRISCOE, Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Robert Durfee appeals the district court’s order revoking his supervised

release and sentencing him to ten months in prison followed by four years of

supervised release. We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and


       This order and judgment is not binding precedent, except under the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.
affirm.

                                          I.

      Durfee pleaded guilty to manufacturing methamphetamine during March

1990, in violation of 21 U.S.C. § 841(a)(1). On August 10, 1990, he was

sentenced to 84 months in prison followed by 8 years of supervised release. He

began serving his supervised release on May 31, 1996. On July 7, 1999, the

district court revoked Durfee’s supervised release for failure to participate in a

drug program as directed by his probation officer and sentenced him to ten

months in prison followed by four years of supervised release.

                                          II.

      On September 13, 1994, Congress enacted 18 U.S.C. § 3583(h), which

provides:

      When a term of supervised release is revoked and the defendant is
      required to serve a term of imprisonment that is less than the
      maximum term of imprisonment authorized under subsection (e)(3),
      the court may include a requirement that the defendant be placed on
      a term of supervised release after imprisonment. The length of such
      a term of supervised release shall 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.

Durfee argues that application of this section to him violates the Ex Post Facto

Clause of the United States Constitution because he committed the underlying

offense before the effective date of § 3583(h). The United States Supreme Court


                                          2
recently held that § 3583(h) is not retroactive and applies only to cases where the

initial offense occurs after September 13, 1994.   Johnson v. United States , 2000

WL 574359 (May 15, 2000). Therefore, § 3583(h) does not apply to Durfee’s

July 7, 1999, sentence.

      We are left then with the question of whether Durfee was illegally

sentenced. In Johnson , the Court looked at whether the version of 18 U.S.C.

§ 3583(e)(3) in effect at the time of the initial offense permitted imposition of

supervised release following reincarceration. At the time Durfee committed his

original offense in March 1990, § 3583(e)(3) authorized the district court to

      revoke a term of supervised release, and require the person to serve
      in prison all or part of the term of supervised release without credit
      for time previously served on postrelease supervision, if it finds by a
      preponderance of the evidence that the person violated a condition
      of supervised release . . . except that a person whose term is revoked
      under this paragraph may not be required to serve more than 3 years
      in prison if the offense for which the person was convicted was a
      Class B felony, or more than 2 years in prison if the offense was a
      Class C or D felony.

The Johnson Court concluded that Congress intended § 3583(e)(3) to allow

imposition of further supervised release:

      The proceeding that follows a violation of the conditions of
      supervised release is not, to be sure, a precise reenactment of the
      initial sentencing. Section 3583(e)(3) limits the possible prison term
      to the duration of the term of supervised release originally imposed.
      . . . The new prison term is limited further according to the gravity
      of the original offense. See § 3583(e)(3). But nothing in these
      specific provisions suggests that the possibility of supervised release
      following imprisonment was meant to be eliminated.

                                            3
Johnson , 2000 WL 574359 *9.   The district court did not err in imposing a prison

sentence followed by a period of supervised release upon the revocation of

Durfee’s supervised release.

                                       III.

      The judgment of the district court is AFFIRMED.

                                              Entered for the Court

                                              Mary Beck Briscoe
                                              Circuit Judge




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