                         United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT

                                   ___________

                                   No. 96-4186
                                   ___________

United States of America,               *
                                        *
      Plaintiff - Appellee,             *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Michael James Fay,                      *
                                        *      [UNPUBLISHED]
      Defendant - Appellant.            *
                                   ___________

                                 Submitted: June 10, 1997
                                     Filed: August 4, 1997
                                   ___________

Before LOKEN and ROSS, Circuit Judges, and FENNER,* District Judge.
                              ___________

PER CURIAM.

      Michael Fay was convicted of embezzling union funds. Granting his motion for
a downward departure, the district court1 sentenced Fay to three months in prison, six
months on work release, three years of supervised release, a $10,000 fine, and an



      *
      The HONORABLE GARY A. FENNER, United States District Judge for the
      Western District of Missouri, sitting by designation.
      1
        The HONORABLE MICHAEL J. DAVIS, United States District Judge for the
District of Minnesota.
assessment for costs of confinement. Some weeks later, the probation officer advised
the court that the Bureau of Prisons cannot supervise inmates on work release. The
court then entered an amended judgment making the six-month term of work release
the first six months of Fay’s three-year term of supervised release. Accepting that
modification, Fay moved to clarify the amended judgment so that it specified when he
must pay the assessed costs of confinement. The court entered a second amended
judgment containing that clarification.

        After serving three months in prison, Fay began his term of supervised release.
During the first six months -- the work release period -- he violated the conditions of
supervised release by lying to his probation officer and submitting forged documents
to his new employer. After a violations hearing, the district court revoked supervised
release and sentenced Fay to two years in prison plus completion of his term of
supervised release and payment of the original fine. On appeal, Fay argues for the first
time that the amended judgment violated Rule 43 of the Federal Rules of Criminal
Procedure because he was not present “at the imposition of sentence.” Therefore, Fay
reasons, the violations occurred during work release under the original judgment, not
during supervised release under the invalid amended judgment, so the district court only
had authority to imprison him for the remainder of the six-month work release term.
We conclude that this issue was not properly preserved. Accordingly, the judgment of
the district court is affirmed.

      A true copy.

             Attest:

                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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