                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 3 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 99-1545
                                                    (D.C. No. 93-CR-276-S)
    RANDOLPH BLATTER,                                      (D. Colo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before McKAY, PORFILIO, and ANDERSON, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Randolph Blatter appeals from a judgment of the district court revoking his

supervised release. He argues that the district court unlawfully extended the time

of supervision beyond the time allowed by statute, and accordingly lost

jurisdiction. We affirm.



BACKGROUND

      Mr. Blatter was convicted in 1994 of violating 18 U.S.C. § 1542, False

Statement on a Passport Application. He was sentenced to six months custody to

be followed by three years of supervised release. At the time of sentencing he

was serving a state sentence on an unrelated conviction. Upon his release from

state custody on June 16, 1996, state parole and the federal supervised release

commenced concurrently.

      Mr. Blatter was required to participate in substance abuse testing and

treatment for both the state and federal supervision. The testing revealed that Mr.

Blatter continued to use illegal substances. As a result, he was arrested by his

state parole officer and his parole was revoked on March 25, 1997. A warrant for

violation of supervised release was issued on March 26, 1997. At the violation

hearing held the following month the district court continued supervised release.




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        When Mr. Blatter was released from state custody on February 12, 1998 his

supervised release resumed. He was released from state parole on October 6,

1998.

        Mr. Blatter continued to have problems with illegal substance abuse,

including failure to appear for drug testing, a condition of his supervised release,

and, on October 12, 1999, a warrant was issued for violation of supervised

release. On October 18, he was arrested.

        Subsequently, following a hearing, the district court revoked supervised

release and sentenced Mr. Blatter to 14 months incarceration.



DISCUSSION

        Mr. Blatter appears to argue that the district court erred at the 1997

revocation hearing by continuing his supervised release in contravention of 18

U.S.C. § 3583(g). That section provides that “[i]f the defendant (1) possesses a

controlled substance; ... or (3) refuses to comply with drug testing imposed as a

condition of supervised release[,] the court shall revoke the term of supervised

release and require the defendant to serve a term of imprisonment ....” Mr.

Blatter contends that had the district court revoked his supervised release in 1997

as required by the statute, his supervised release would not have been tolled

during the time he was in state custody. See 18 U.S.C. § 3624(e) (“A term of


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supervised release does not run during any period in which the person is

imprisoned in connection with a conviction for a Federal, State, or local crime

unless the imprisonment is for a period of less than 30 consecutive days.”). And

had Mr. Blattner’s supervised release not been tolled while he was in state

custody, the period of supervised release would have expired before the issuance

of the violator warrant in October 1999. Thus, the argument goes, the district

court lacked jurisdiction to revoke Mr. Blatter’s supervised release and impose a

prison term. This argument lacks merit.

      We note that Mr. Blatter did not raise this argument below. Although

counsel for Mr. Blatter indicates in her brief that she raised the issue below, it is

clear from a review of the transcript that she withdrew the argument.

      However, a challenge to subject matter jurisdiction may be raised at any

time. See United States v. Burch, 169 F.3d 666, 668 (10th Cir. 1999).

      While we agree with Mr. Blatter that the district court in 1997 was required

to terminate the term of supervised release under § 3583(g), we do not agree that

as a result of the failure of the district court to follow the statutory mandate in

1997 that supervised release terminated, and therefore the district court did not

have jurisdiction in 1999 to impose a prison term for violation of supervised

release. Mr. Blatter cites to no authority that failure to follow the




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dictates of § 3583(g) results in the loss of jurisdiction to revoke supervised

release upon a subsequent violation. 1

      The judgment of the United States District Court for the District of

Colorado is AFFIRMED.



                                                     Entered for the Court



                                                     John C. Porfilio
                                                     Circuit Judge




1
       We note that in the proceedings below Mr. Blatter once again requested the
district court to continue his supervised release.

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