United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-1333

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Thomas Arthur Palmer, * [UNPUBLISHED]

*

Appellant. *

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 Submitted: September 10, 2003

 Filed: October 14, 2003

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Before WOLLMAN, HANSEN, and RILEY, Circuit Judges.

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PER CURIAM.

Thomas A. Palmer appeals the sentence imposed on him by the district court

following revocation of his supervised release. We vacate the sentence and remand

for resentencing.

Palmer was initially sentenced to 27 months of imprisonment and 36 months

of supervised release following his guilty plea to three counts of threatening to use

a weapon of mass destruction to blow up federal buildings in violation of 18 U.S.C.

§ 2332a(a)(3), and one count of mailing a threat to blow up a federal post office in

violation of 18 U.S.C. § 844(e). The section 2332a(a)(3) offenses were Class A
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felonies. See 18 U.S.C. §§ 2332a(a) (violations of § 2332a(a)(3) are punishable by

up to life imprisonment); 3559(a)(1) (where life imprisonment is authorized, offense

is considered Class A felony).

Following Palmer’s release from incarceration, the district court found that he

had violated the terms of his supervised release. The court thus revoked Palmer’s

supervised release and sentenced him to 12 months of imprisonment and 36 months

of supervised release. Palmer argues that he cannot be sentenced to more than 24

months of additional supervised release because his total revocation sentence--12

months of imprisonment plus 36 months of additional supervised release, for a total

of 48 months--is capped by the length of his original 36-month supervised-release

term.

The applicable statute is 18 U.S.C. § 3583(h), which provides:

When a term of supervised release is revoked 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

supervised release after imprisonment. The length of such a term of

supervised release shall not exceed the term 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 release.

 

See 18 U.S.C. § 3583(h).

In United States v. St. John, 92 F.3d 761, 766 (8th Cir. 1996), a panel of this

court construed “the term of supervised release authorized by statute for the offense

that resulted in the original term of supervised release” to mean “the term of

supervised release in the original sentence rather than the maximum authorized term

of supervised release.”
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Contrary to the government’s contention, we conclude that the Supreme

Court’s decision in Johnson v. United States, 529 U.S. 694 (2000), abrogated only

that portion of St. John which held that 18 U.S.C. § 3583(h) applies retroactively.

Accordingly, St. John clearly governs this case, and we are not free to deviate from

that decision. See Campbell v. Purkett, 957 F.2d 535, 536 (8th Cir. 1992) (per

curiam) (en banc consideration is required to overrule prior panel’s decision).

The sentence is vacated, and the case is remanded to the district court with

instructions to reduce Palmer’s revocation sentence to a total of 36 months of

imprisonment and supervised release, combined.

RILEY, Circuit Judge, concurring.

I concur with the opinion of this court that United States v. St. John, 92 F.3d

761 (8th Cir. 1996), governs the case before us. The St. John panel concluded the

sentence imposed upon revocation of a term of supervised release is capped at the

length of the original supervised-release term, id. at 766, rather than at the length of

the term “authorized by statute for the offense that resulted in the original term of

supervised release.” 18 U.S.C. § 3583(h). I write separately to state my view that

this court should rehear this case en banc to reconsider the St. John ruling, which

appears contrary to the plain language of 18 U.S.C. § 3583(h). See, e.g., United

States v. Pla, ___ F.3d ___, No. 02-16815, 2003 WL 22159466, at *2 (11th Cir. Sept.

19, 2003).

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