UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4597

ROCKY WOOD,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Newport News.

J. Calvitt Clarke, Jr., Senior District Judge.

(CR-91-59)

Submitted: September 29, 1997

Decided: October 7, 1997

Before HALL and MOTZ, Circuit Judges, and

MICHAEL, Senior United States District Judge for the

Western District of Virginia, sitting by designation.

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Vacated by unpublished per curiam opinion.

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COUNSEL

Hunt L. Charach, Federal Public Defender, Charleston, West Virginia, for Appellant. Helen F. Fahey, United States Attorney, Kevin

M. Comstock, Assistant United States Attorney, Norfolk, Virginia,

for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Rocky Wood appeals the district court's revocation of supervised

release and the imposition of a twenty-four month term of imprisonment. We vacate the sentence.

The government concedes that the district court was without

authority to impose the 1991 and 1994 revocation sentences. See

United States v. Alli, 929 F.2d 995, 998 (4th Cir. 1991) ("[F]ollowing

revocation of probation, the court is limited to a sentence within the

guidelines available at the time of the original sentence"), and United

States v. Cooper, 962 F.2d 339, 340 (4th Cir. 1992) ("[U]pon revoking a previously imposed term of supervised release,[a court] has no

authority to impose another term of supervised release but may only

order reincarceration"). The government's only argument is that

Wood has waived or forfeited his right to raise the illegality of the

earlier sentences for the first time in the appeal of the 1996 sentence.

We reject the argument for a number of reasons.

The errors in the 1991 and 1994 revocation sentences are clear, and

the government as much as concedes that the cumulative effect of the

three erroneous sentences amounts to error in the current sentence that

is "plain." See United States v. Olano, 507 U.S. 725, 732-33 (1993).

Moreover, it is clear that Wood could have attacked the legality of all

of the sentences in a habeas corpus proceeding at any time he

remained under supervision as a result of the 1990 conviction. See

United States v. Robinson, 106 F.3d 610 (4th Cir. 1997) (granting a

writ of habeas corpus in a case in which special parole had been reimposed after each of four revocations, although no direct appeal had

been taken from any of these sentences). The closer questions are

whether the error is prejudicial and, if so, whether we should exercise

our discretionary authority to correct it. See id. at 735-36. We answer

both in the affirmative.

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When Wood was initially sentenced in 1990, his Guidelines range

was 8-14 months. Now, in 1997, the sentence on appeal extends the

period of supervision over Wood to a point almost two years beyond

the date at which he would have been free of any supervision had the

district court proceeded correctly from the beginning, operated under

no misapprehension as to the sentencing options available at each

juncture, and imposed the maximum available sentences in 1991 and

1994. Thus, we readily find prejudicial error that "seriously affect[s]

the fairness" of the sentencing process. Id. at 736. Accordingly, the

sentence is vacated.

VACATED

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