                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4657



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


MALCOLM JOHNSON,

                                            Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(1:02-cr-00417-MJG)


Submitted:   November 26, 2007         Decided:     December 28, 2007


Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Francis S. Brocato, BROCATO, PRICE & JANOFSKY, LLC, Towson,
Maryland, for Appellant. Rod J. Rosenstein, United States Attorney,
James T. Wallner, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Following his guilty pleas to possession of a firearm

after    a   conviction    for   a   felony   offense,    possession    of   an

unregistered firearm, and possession with the intent to distribute

controlled substances, the district court sentenced Malcolm Johnson

to time served, to be followed by three consecutive three-year

terms of supervised release.            As a condition of his supervised

release, the court ordered Johnson to serve twenty-four months in

community confinement.       Johnson appeals, arguing that the twenty-

four month term of community confinement is unreasonable, and that

the     supervised   release     term   is    contrary    to   the   statutory

requirement that supervised release terms be concurrent.                     The

Government    asserts     that   Johnson’s    challenge   to   the   community

confinement condition of supervised release falls within his valid

appeal waiver, but concedes that the consecutive supervised release

terms result in an illegal sentence and are not barred by Johnson’s

appeal waiver.       For the reasons that follow, we vacate Johnson’s

sentence and remand to the district court for resentencing.

             A term of supervised release “runs concurrently with any

[other] term . . . [of] supervised release or parole for another

offense to which the person is subject or becomes subject during

the term of supervised release.”          18 U.S.C. § 3624(e) (2000); see

United States v. Ziskind, 471 F.3d 266, 272 (1st Cir. 2006), cert.

denied, 127 S. Ct. 1902 (2007); United States v. Hernandez-Guevara,


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162 F.3d 863, 877 (5th Cir. 1998) (providing that supervised

release terms are concurrent, even if imprisonment terms are

consecutive).

           Here, the district court ran Johnson’s three three-year

terms of supervised release consecutively, contrary to the mandate

of the statute.   This challenge to the legality of the sentence is

an exception to Johnson’s appeal waiver.         See United States v.

Marin, 961 F.2d 493, 496 (4th Cir. 1992) (allowing review despite

waiver for claim that sentence exceeded statutory maximum or was

based on constitutionally impermissible factor).         The Government

concedes   that   the   consecutive   terms   resulted   in   an   illegal

sentence, and we agree.       It is therefore necessary to vacate

Johnson’s sentence and remand for resentencing.

           It appears from the record that the district court began

its determination of an appropriate sentence by considering the

length of supervision. Only after stating that it was necessary to

impose a long term of supervision did the court address the

imprisonment term and the conditions of supervision.          Because we

cannot say that the district court would limit the imprisonment

term to time served without the lengthy term of supervision it

imposed, we do not limit our remand to merely directing that the

terms of supervised release be concurrent.      Rather, on remand, the

district court is free to revisit these issues in light of the fact




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that Johnson’s terms of supervised release must run concurrently,

rather than consecutively.

          In conclusion, although we affirm Johnson’s convictions,

we vacate his sentence and remand for resentencing.*   We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.



                                                 AFFIRMED IN PART,
                                                  VACATED IN PART,
                                                      AND REMANDED




     *
      In light of this disposition, we express no opinion as to the
reasonableness of the supervised release condition that Johnson
serve twenty-four months in community confinement.

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