* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 18 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 99-1328 ROBERT DURFEE, Defendant-Appellant. (D.C. No. 90-CR-105-Z) (D.Colo.)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, EBEL and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Robert Durfee appeals the district court’s order re voking his supervised release and sentencing him to ten months in prison followed by four years of supervised release. We exercise jurisdiction pursu ant to 18 U.S.C. § 3742(a) and2

affirm.
I. Durfee pleaded guilty to manufacturing methamphetam ine during March 1990, in violation of 21 U.S.C. § 841(a)(1). On Au gust 10, 1990, he was sentenced to 84 months in prison followed by 8 year s of supervised release. He began serving his supervised release on May 31, 199 6. On July 7, 1999, the district court revoked Durfee’s supervised release for failure to participate in a drug program as directed by his probation officer and sentenced him to ten months in prison followed by four years of supervis ed release.
II. On September 13, 1994, Congress enacted 18 U.S.C. § 3583(h), which provides: When a term of supervised release is revoked and th e defendant is required to serve a term of imprisonment that is le ss than the maximum term of imprisonment authorized under subse ction (e)(3), the court may include a requirement that the defend ant be placed on a term of supervised release after imprisonment. T he length of such a term of supervised release shall not exceed the t erm 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 rele ase. Durfee argues that application of this section to h im violates the Ex Post Facto Clause of the United States Constitution because hecommitted the underlying offense before the effective date of § 3583(h). Th e United States Supreme Court3

recently held that § 3583(h) is not retroactive andapplies only to cases where the initial offense occurs after September 13, 1994. Johnson v. United States , 2000 WL 574359 (May 15, 2000). Therefore, § 3583(h) doe s not apply to Durfee’s July 7, 1999, sentence. We are left then with the question of whether Durfe e was illegally sentenced. In Johnson , the Court looked at whether the version of 18 U.S .C. § 3583(e)(3) in effect at the time of the initial o ffense permitted imposition of supervised release following reincarceration. At the time Durfee committed his original offense in March 1990, § 3583(e)(3) author ized the district court to revoke a term of supervised release, and require th e person to serve in prison all or part of the term of supervised rel ease without credit for time previously served on postrelease supervisi on, if it finds by a preponderance of the evidence that the person violated a condition of supervised release . . . except that a person wh ose term is revoked under this paragraph may not be required to serve m ore than 3 years in prison if the offense for which the person was c onvicted was a Class B felony, or more than 2 years in prison if the offense was a Class C or D felony. The Johnson Court concluded that Congress intended § 3583(e)(3 ) to allow imposition of further supervised release: The proceeding that follows a violation of the cond itions of supervised release is not, to be sure, a precise re enactment of the initial sentencing. Section 3583(e)(3) limits the possible prison term to the duration of the term of supervised release o riginally imposed. . . . The new prison term is limited further accor ding to the gravity of the original offense. See § 3583(e)(3). But no thing in these specific provisions suggests that the possibility o f supervised release following imprisonment was meant to be eliminated.4

Johnson , 2000 WL 574359 *9. The district court did not err in imposing a pris on sentence followed by a period of supervised release upon the revocation of Durfee’s supervised release.
III. The judgment of the district court is AFFIRMED. Entered for the Court Mary Beck Briscoe Circuit Judge