                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                       Revised May 8, 2003
                                                             April 23, 2003
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                Clerk


                           No. 02-11222




     UNITED STATES OF AMERICA,


                                          Plaintiff-Appellee,


          versus


     CHARLES N. JACKSON,


                                          Defendant-Appellant.



          Appeal from the United States District Court
               for the Northern District of Texas



Before GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

     Appellant Charles N. Jackson was convicted, pursuant to his

guilty plea, of one count of aiding and abetting bank theft

exceeding $100 on May 16, 1995 contrary to 18 U.S.C. §§ 2, 2113(b)

for which he was sentenced on April 25, 1997, to eighteen months’

incarceration and a three year term of supervised released. He was

also ordered to pay a $50 special assessment and $30,000 in
restitution.     The remaining counts of indictment in which Jackson

was charged were then dismissed. Jackson appealed and on March 26,

1998, this court affirmed his conviction and sentence.             Jackson’s

said three year term of supervised release began on July 13, 1998.

On   September   21,   2000,   the   district    court   revoked   Jackson’s

supervised   release    and    sentenced   him   to   twenty-three   months’

incarceration and twelve months of supervised release.               Jackson

appealed and this court, on August 28, 2001, affirmed the district

court’s September 21, 2000 judgment.             On October 24, 2002, the

district court revoked Jackson’s supervised release which had been

imposed on September 21, 2000, and sentenced him to eighteen

months’ incarceration (no further supervised release was imposed).

      Jackson now appeals the district court’s October 24, 2002

judgment.    He contends that because his underlying offense of

conviction is concededly a class C felony, 18 U.S.C. § 3559(a)(3),1

and because it is undisputed that on revocation of supervised

release no more than two years’ imprisonment may be imposed if the

offense that resulted in the term of supervised release is a class




      1
      When the underlying offense was committed, in May 1995, bank
theft exceeding $100 carried a maximum imprisonment term of ten
years, while such theft in an amount not exceeding $100 carried a
maximum term of one year. 18 U.S.C. § 2113(b) (1995). By § 606(a)
of Pub. L. 104-294, 110 Stat. 3511, effective October 11, 1996, the
figure “$1,000" was substituted for “$100" throughout § 2113. An
offense carrying a maximum sentence of less than 25 years but ten
or more years is a Class C felony. § 3559(a)(3).

                                      2
C felony, 18 U.S.C. § 3583(e)(3),2 that therefore on the October

24, 2002 revocation of his supervised release he could be sentenced

to no longer term of imprisonment than one month–instead of the

eighteen months’ imprisonment imposed by the district court–since

he had already been sentenced to twenty-three months’ imprisonment

on the September 21, 2000 revocation of the supervised release

imposed in April 1997 as part of his original sentence for the


     2
      § 3583(e) provides that
          “The court may . . .
               (1) . . .
               (2) . . .
               (3) revoke a term of supervised
               release, and require the defendant
               to serve in prison all or part of
               the term of supervised release
               authorized    by   statute   for  the
               offense that resulted in such term
               of supervised release without credit
               for   time   previously    served  on
               postrelease supervision, if the
               court, pursuant to the Federal Rules
               of Criminal Procedure applicable to
               revocation      of    probation    or
               supervised release, finds by a
               preponderance of the evidence that
               the defendant violated a condition
               of supervised release, except that a
               defendant whose term is revoked
               under this paragraph may not be
               required to serve more than 5 years
               in prison if the offense that
               resulted in the term of supervised
               release is a class A felony, more
               than 3 years in prison if such
               offense is a class B felony, more
               than 2 years in prison if such
               offense is a class C or D felony, or
               more than one year in any other
               case; or
               (4) . . . .”

                                 3
underlying offense. Jackson contends, in other words, that the two

year maximum provided for in section 3583(e)(3) applies on a

cumulative basis and not separately to each time supervised release

is revoked.     The Government now concedes that Jackson is correct

and that on the October 24, 2002 revocation the district court

could not have imposed any term of imprisonment in excess of one

month.    The     Government’s   concession   is   supported by the

legislative history to the 1994 amendments to section 3583, which

added subsection (h) to section 35833 and also, inter alia, amended

paragraph (3) of subsection (e) of section 3583 in diverse respects

essentially immaterial to the present issue.4   See United States v.


     3
      Subsection (h) of § 3583 provides:
          “(h) Supervised release following revocation.-
          -
          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.”
     4
      Before the 1994 amendments, § 3583(e)(3) provided as follows:
          “(3) 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

                                  4
Beals, 87 F.3d 854, 857-58 (7th Cir. 1996) (overruled in part on

other grounds, United States v. Withers, 128 F.3d 1167, 1172 (7th

Cir. 1997), cert. denied, 119 S.Ct. 79 (1998)); United States v.

Brings Plenty, 188 F.3d 1051, 1054 (8th Cir. 1999); United States

v. Merced, 263 F.3d 34, 37-38 (2d Cir. 2001), all relying on

statements of the sponsor of the 1991 bill “containing nearly

identical provisions” to those which became the relevant portions

of the 1994 amendments to section 3583.5     Brings Plenty at 1054;

Merced at 37-38.   Merced and United States v. Swenson, 289 F.3d 676

(10th Cir. 2002), are direct holdings that, as applied here, would

limit Jackson’s confinement imposed on the October 24, 2002,




          violated a conviction of supervised release,
          pursuant to the provisions of the Federal
          Rules   of   Criminal   Procedure    that   are
          applicable to probation revocation and to the
          provisions of applicable policy statements
          issued by the Sentencing Commission, 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 1994 amendments rewrote § 3583(e)(3) into its present
language (see note 2, supra). The substantive changes appear to be
essentially the following, viz: (i) the insertion of “authorized by
statute for the offense that resulted in such term of supervised
release” just before the words “without credit”, thus removing the
otherwise arguable limitation that a prison term imposed could
never be longer than the term of the revoked supervised release;
and (ii) the addition of an express 5 year limitation on prison
terms for class A felonies.
     5
      See 137 Cong. Rec. S 7769-72 (daily ed. June 13, 1991).

                                  5
revocation to one month.6   No Circuit court decision of which we

are aware has held the contrary, and any such holding on our part

would create a circuit split.

     We accordingly accept the Government’s confession of error.7


     6
      Brings Plenty did not involve the length of confinement, but
rather the length of supervised release, imposable in such a
situation.   Beals was an ex post facto challenge to a term of
supervised release imposed on initial revocation and its result
does not in any sense appear to rest on its statements concerning
confinement imposable on a second revocation being limited by
credit for confinement imposed on the initial revocation.
     7
      Our acceptance of the Government’s concession is dubitante.
The principal thrust of the relevant portions of the 1991 bill, the
substance of which later became the 1994 amendments to § 3583, was
the addition of subsection (h) of § 3583 which for the first time
expressly authorized the imposition of supervised release when
sentencing a defendant on revocation of supervised release. In
that situation, the first sentence of subsection (h) provides
supervised release may be imposed if the sentence on revocation
includes confinement less than the maximum authorized by §
3583(e)(3). Subsection (h) does not in any way address the length
of confinement that can be imposed on revocation of supervised
release, but only the length of the new term of supervised release.
The length of that term is limited by the last sentence of
subsection (h) to the maximum authorized for “the original term of
supervised release, less any term of imprisonment that was imposed
upon revocation of supervised release.” The only portion of § 3583
which limits the length of imprisonment imposable on revocation of
supervised release is § 3583(e)(3), and none of its limits
expressly take into account the length of any previously imposed
imprisonment. Nor do the 1994 amendments make any change in that
respect in § 3583(e)(3).     Arguably, the result in Merced and
Swenson is contrary to the plain meaning of §§ 3583(e)(3) and
3583(h). Moreover, Merced’s concern that a contrary holding “would
permit an endless cycle of consecutive terms of imprisonment and
supervised release based on a single underlying offense,” id. at
37, neglects to consider that no supervised release may be imposed
on revocation if imprisonment to the maximum authorized by §
3583(e)(3) is imposed or if the confinement that was imposed on
previous revocation amounts to as much as the maximum supervised
release term authorized for the original offense (three years for
a class C felony, 18 U.S.C. § 3583(b)(2)).

                                 6
     We therefore modify the district court’s October 24, 2002

order so that the sentence imposed is one month’s confinement and

affirm as so modified.8

                       AFFIRMED as MODIFIED




     8
      Jackson has served the one month maximum term of imprisonment
authorized. As his term of supervised release imposed September
21, 2000, has been revoked, it is no longer in effect and Jackson
has now discharged his April 25, 1997 sentence. We conclude that
Jackson has abandoned (or in effect treated as a contention made
only if we reject his contention as to the maximum confinement
imposable at his October 24, 2002 revocation) his contention that
he is entitled to a new revocation hearing because he was
wrongfully denied his requested continuance of the October 24, 2002
hearing.

                                 7
