                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                  UNITED STATES COURT OF APPEALS            December 5, 2006
                           FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-20747
                          Summary Calendar


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                               versus

                         JOSEPH NOEL SEALS,

                                                Defendant-Appellant.


          Appeal from the United States District Court
               for the Southern District of Texas
                        (4:05-CR-306-ALL)



Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Convicted in 1992 on narcotics and firearm violations, Joseph

Noel Seals, was sentenced to a term of imprisonment, followed by

five years of supervised release.    He began serving his supervised

release in March 2005.   That August, he was found to have violated

the terms of such release. The district court revoked his release,

sentenced him to 11 months in prison, and ordered he be placed back



     *
      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this opinion should not be published and is not precedent except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.

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on supervised release for four years following his imprisonment.

Seals   contests   the   imposition   of   another   term   of   supervised

release.

     Seals challenges the reimposition of a term of supervised

release for the first time on appeal.        He claims the issue should

be reviewed de novo, nevertheless, because the reimposition of

supervised release exceeded the court’s statutory authority.             In

his brief, however, Seals maintains the reimposition of supervised

release deprived him of his Fifth Amendment due process rights.

Because Seals claims a constitutional violation and because he did

not object in district court to the reimposition of supervised

release, our review is only for plain error.         See United States v.

Olano, 507 U.S. 725, 731-37 (1993).        To establish reversible plain

error, a defendant must show a clear or obvious error affected his

substantial rights. E.g., United States v. Castillo, 386 F.3d 632,

636 (5th Cir.), cert. denied, 543 U.S. 1029 (2004).          Even then, we

retain discretion to correct the error; generally, we will do so

only if it “affects the fairness, integrity, or public reputation

of judicial proceedings”.     Id.

     A district court’s authority to revoke supervised release is

governed by 18 U.S.C. § 3583.       When Seals was originally sentenced

in 1992, § 3583(e) stated in part: a court may “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 the


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time previously served on postrelease supervision .... ” 18 U.S.C.

3538.   In interpreting that section, we had previously held that a

defendant could not be required to serve another term of supervised

release (following imprisonment) after the original release term

had been revoked.    See United States v. Holmes, 954 F.2d 270, 272

(5th Cir. 1992).    We were not alone in our view.   See, e.g., United

States v. Koehler, 973 F.2d 132 (2nd Cir. 1992); United States v.

Malesic, 18 F.3d 205 (3rd Cir. 1994); United States v. Cooper, 962

F.2d 339 (4th Cir. 1992); United States v. Truss, 4 F.3d 437 (6th

Cir. 1993); United States v. McGee, 981 F.2d 271 (7th Cir. 1992);

United States v. Behnezhad, 907 F.2d 896 (9th Cir. 1990); United

States v. Rockwell, 984 F.2d 1112 (10th Cir. 1993); United States

v. Tatum, 998 F.2d 893 (11th Cir. 1993).      Two circuits, however,

held § 3583(e)(3) did grant district courts the power to reimpose

a further term of supervised release after revocation.     See, e.g.,

United States v. O’Neil, 11 F.3d 292 (1st Cir. 1993); United States

v. Schrader, 973 F.2d 623 (8th Cir. 1992).

     In 2000 (after Seals’s original conviction but before the

revocation of his release), Johnson v. United States, 529 U.S. 694

(2000), settled the circuit split and sided with the minority

approach.    Johnson held § 3583(e) did permit district courts,

revoking a term of supervised release in favor of reimprisonment,




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to require a further term of supervised release following the

further incarceration.      529 U.S. at 704-10.

     Seals relies on Johnson in claiming that, because his original

conviction occurred in 1992, to apply Johnson to his case is to

retroactively apply the decision in violation of the Constitution’s

Ex Post Facto Clause.     “The heart of the Ex Post Facto Clause, U.S.

Const., Art. I, § 9, bars application of a law ‘that changes the

punishment, and inflicts a great punishment than the law annexed to

the crime, when committed.’”       Johnson, 529 U.S. at 699 (quoting

Calder v. Bull, 3 U.S. 386, 390(1798)). Retroactive application of

Johnson, Seals urges, violates the core due process “concepts of

notice, foreseeability, and in particular, the right to fair

warning .... ”     Rogers v. Tennessee, 532 U.S. 451, 459 (2001).

Because he had no warning or reasonable expectation at the time of

his offense that he could be subject to reimposition of supervised

release following revocation, Seals contends the law in this

circuit at the time of his offense, as expressed in Holmes, should

be applied to his case.      As explained below, Seals has not shown

plain error.

     “If   a   judicial    construction   of   a   criminal   statute   is

unexpected and indefensible by reference to the law which had been

expressed prior to the conduct in issue, it must not be given

retroactive effect.”      Bouie v. City of Columbia, 378 U.S. 347, 354

(1964)(internal quotes omitted).          In Seals’ case, the Supreme

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Court’s construction of § 3583(e)(3) was not “unexpected.”                         A

circuit-split, such as existed prior to Johnson, makes a Supreme

Court ruling on the issue reasonably foreseeable and provides a

defendant fair warning.            United States v. Zuniga, 18 F.3d 1254,

1259 (5th Cir.), cert. denied, 519 U.S. 902 (1994) (citing United

States     v.   Rodgers,    466    U.S.     475,    484   (1984)).     Nor   was   §

3583(e)(3)’s construction “indefensible” under existing law; prior

to Johnson, two circuits, had interpreted § 3583(e) to permit

supervised release after revocation.

      Moreover, Seals new sentence is not above and beyond the

maximum penalty of his original conviction.                    Such a result is

forbidden under § 3583(e)(3).             Johnson, 529 U.S. at 712.        “Section

3583(e)(3) limits the possible prison term to the duration of the

term of supervised released originally imposed ... [and] [t]he new

prison term is limited further according to the gravity of the

original offense.”         Id.    Judicial construction of § 3583(e)(3) was

not   an   “unforseeable         judicial       enlargement   of   [the]   criminal

statute” so as to make it operate as an ex post facto law.                   Bouie,

378 U.S at 352.

      In sum, Seals has not shown a “clear” or “obvious” error.

Therefore, even assuming an error, it was not plain error.

                                                                           AFFIRMED




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