* The Honorable Louis F. Oberdorfer, United States Dist rict Judge for the District of Columbia, sitting by designation. NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 06a0064n.06 Filed: January 23, 2006 Case No. 05-1068 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JOSEPH EDWARD BROWN, Defendant-Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

BEFORE: KEITH and BATCHELDER, Circuit Judges; OBERDORFER * , District Judge. ALICE M. BATCHELDER, Circuit Judge. Joseph Brown appeals his sentence for violation of supervised release. Brown argues th at his sentence was unreasonable, and that his term of supervised release was unauthorized. The govern ment concedes error with respect to the second issue. In 2000, Brown was sentenced to a fifty- four month prison term followed by three years of supervised release. He left prison on June 24, 2004. Between September 22 and October 27 of the same year, Brown violated the conditions of hi s supervised release by repeatedly using crack cocaine, by failing to attend substance abuse counseling and by attempting to shoplift two bottles of vodka from a state liquor store. Brown was apprehended, and he pled guilty to fiveviolations of his supervised release. The1 We need not consider whether United States v. Booker , 543 U.S. 220, 125 S. Ct. 738 (2005), requires the court to apply a reasonableness standard in stead of a plainly unreasonable standard. See United States v. Johnson , 403 F.3d 813, 817 (6th Cir. 2005) (declining to decide whether Booker changed the standard of review from plainly unreasonable to reasonableness). Under either standa rd, we would vacate the district court’s sentence. 2 district court sentenced Brown to twenty-four months in prison under 18 U.S.C. § 3583(e)(3) followed by twelve months of supervised releas e under 18 U.S.C. § 3583(h). At the time, twentyfour months was the maximum prison term available under 18 U.S.C. § 3583(e)(3). Brown did not object to the sentence and did not request resentencing. 1. Brown’s sentence of imprisonment is not plainly unreasonable

. This Court will affirm a district court’s sentence of imprisonment upon revocation of supervised release if the sentence shows consider ation of the statutory factors enumerated in 18 U.S.C. § 3553 and is not “plainly unreasonable.” 1 United States v. McClellan , 164 F.3d 308, 309 (6th Cir. 1999). The transcript of Brown’s sentencing hearing indicates that the district court took several of the 18 U.S.C. § 3553 factors into cons ideration. In addition to noting the recommended Guidelines range, the court consid ered Brown’s drug addition, his state parole violations, his attempt to find a job, and the lack of a suitable residential drug treatment program in the area. Having determined that the district court appropriately considered the relevant statutory factors, we must next decide whether Brown’s sentence was “plainly unreasonable.” Although Brown’s sentence exceeded the recommended Guidelines range by six months, U.S.S.G. § 7B1.4(a), which establishes the range applicable to violations of supervised release, is merely an advisory statement of policy. Sixth Circuit precedent has esta blished that sentences outside of the Guidelines range are not per se unreasonable. In United States v. West , the Sixth Circuit approved a sentence of two years’ imprisonment where the applicable Guidelines range was three to nine months. 59 F.3d 32, 36 (6th Cir. 1995). Similarly, in United States v. Johnson , the court held that a sentence3 of eighteen months’ imprisonment followed by eighteen months of supervised release was not unreasonable even though the applicable Guidelines range called for four to ten months’ imprisonment. 403 F.3d 813, 814 (6th Cir. 2005). Because the district court’s prison sentence reflects both the seriousness of Br own’s offenses and his need fo r drug rehabilitation, we find that it is not plainly unreasonable. We therefore AFFIRM the sentence of imprisonment. 2. The district court erred in imposing an additional term of supervised release At the time of Brown’s conviction, 18 U.S.C. § 3583(h) provided: When a term of supervised release is re voked 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 supervisedrelease after imprisonment. The length of such a term of supervisedrelease shall not exceed the term of supervised release authorized by statute for the offense that re sulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release. After Brown’s conviction, but prior to sentenci ng for his violation of supervised release, Congress amended 18 U.S.C. § 3583(h) by striking th e words, “that is less than the maximum term of imprisonment authorized under subsection (e)(3).” See Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21, §101 (2003). Both Brown and the government agree that the district court’s imposition of supervised release following the maximum twenty-four month prison term was impermissible; however, the parties reach their respective conclusions by separate routes. Brown asserts that his sentence violates the Ex Post Facto Clause of the Unite d States Constitution, and the government asserts that it contravenes this court’s decision in United States v. Davis , 187 F.3d 528 (6th Cir. 1998). We first address Brown’s ex post facto claim. In Johnson v. United States , the Supreme4 Court addressed a similar question. 529 U.S. 694, 701 (2000). It refused to find a violation of the Ex Post Facto Clause where the appellant could not show that Congress intended a prior version of § 3583(h) to apply retroactively. Id . The Court wrote, “[a]bsent a cl ear statement of that intent, we do not give retroactive effect to statutes burdening private interests.” Id . Because the amendment and its legislative history were silent on the issu e of retroactive application, the Court applied its “long-standing presumption” that the amendment applied only to cases arising after its effective date. Id . at 702. The instant case is analogous. The amendment of § 3583(h) noted by Brown was enacted after the date of his original conviction. The amendment does not contain an alternative effective date, and neither the public law nor the legislative history comment on retroactive application of the amendment. Under Johnson , we must presume that Congress did not want courts to apply the amendment retroactively. Furthermore, the record does not reflect that the district court believed it was imposing the new term of supervised rel ease under the amended statute; indeed, the court made no reference to any statute when it imposed the new term of supervised release, but imposed it in an apparent effort to provide some assistan ce to the defendant. We conclude, therefore, that there has been no violation of the Ex Post Facto clause. We now turn to the government’s assertion th at Brown’s sentence contravenes this court’s decision in United States v. Davis. In that case, as in this, the district court imposed the maximum sentence allowable for violation of supervised rel ease, followed by an additional term of supervised release. Id . at 530. We found the sentence to be clear error under the plain language of 18 U.S.C. §3583(h) because that section permits imposition of s upervised release only where the district court imposes less than the maximum prison term. Id . at 533. In this case, the district court sentenced5 Brown to the maximum prison term. As a result, its imposition of supervised release was in error. Accordingly, we VACATEthe sentence and REMAND the case for resentencing.