                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT               September 27, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-40831
                           Summary Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

ISRAEL MAGANA,

                                      Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 7:99-CR-392-ALL
                       --------------------

Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Israel Magana appeals the sentence imposed by the

district court following the revocation of his term of supervised

release.   Magana argues that his sentence exceeds the statutory

maximum because it includes a one-year term of supervised release

in addition to a two-year term of imprisonment.

     A district court may revoke a term of supervised release and

require a defendant to return to prison.      18 U.S.C. § 3583(e)(3).

Where the offense that resulted in the term of supervised release

is a class C felony, as was Magana’s 1999 carjacking offense, the

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                           No. 05-40831
                                -2-

defendant may not be required to serve more than two years in

prison.   Id.; see 18 U.S.C. § 3559(a)(3).

     Under the provisions of 18 U.S.C. § 3583(h), as that section

read at the time of Magana’s carjacking offense, the district

court was also permitted to impose a term of supervised release

to be served after imprisonment, but only when the term of

imprisonment was less than the maximum term of imprisonment

authorized under § 3583(e)(3).   Section 3583(h) has since been

amended; however, the amendment will not be applied retroactively

absent a clear statement that Congress so intended.   See Johnson

v. United States, 529 U.S. 694, 702-03 (2000).   The Government,

citing ex post facto concerns, properly concedes that § 3583(h)

must be applied as it read when Magana committed the underlying

carjacking offense.

     Because Magana was sentenced to the maximum term of

imprisonment under 18 U.S.C. § 3583(e)(3), the district court was

prohibited under the applicable version of § 3583(h) from

imposing a subsequent term of supervised release.   Accordingly,

Magana’s sentence is vacated and the case is remanded to the

district court for resentencing.

     VACATED AND REMANDED FOR RESENTENCING.
