* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral 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 25 2000 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. NELSON BEGAY, Defendant-Appellant. No. 98-4195 (D.C. No. 91-CR-156-S) (Utah)



### 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). Th e cause is therefore ordered submitted without oral argument. Nelson Begay pled guilty in 1991 to two counts of abusive sexual conduct, one count based on conduct in 1986 and one count ba sed on conduct in 1991. He was sentenced in 1992 to 108 months in prison on th e first count and 24 months-2-

in prison followed by three years of supervised rel ease on the second count, the sentences to run concurrently. Mr. Begay began his term of supervised release in 1997. After Mr. Begay admitted violating the terms of his supervised release, he was sentenced to nine months incarceration to be fo llowed by 27 months of supervised release. Mr. Begay appeals the sentence . Based on Johnson v. United States , No. 99-5153, 2000 WL 574359 (U.S. May 15, 2000), we affirm. On appeal, Mr. Begay contends that under the senten cing statute in effect at the time of his offenses, 18 U.S.C. § 3358(e)(3), the court lacked authority to impose a term of supervised release after reimpriso nment. He further argues that application to him of the 1994 amendment to that st atute, id. § 3358(h), which expressly authorized such terms of supervised relea se, violates the Ex Post Facto Clause. The Supreme Court in Johnson considered the statutes at issue here and addressed the same arguments made by Mr. Begay. Atthe time Mr. Begay was convicted and sentenced, the imposition of terms of supervised release was governed by 18 U.S.C. § 3583(e)(3), which did “not speak directly to the question whether a district court revoking a term of supervi sed release in favor of reimprisonment may require service of a further term of supervised release following the further incarceration.” Johnson , 200 WL 574359, at *6. The statute was amended in 1994 by the addition of sect ion 3583(h), which “explicitly-3-

gave district courts the power to impose another te rm of supervised release following imprisonment, a power not readily apparent from the text of § 3583(e)(3).” Id. at *3. The Court held in Johnson that section 3583(h) “applies only to cases in which [the] initial offense occurred after the effe ctive date of the amendment, September 13, 1994.” Id. at *5. Because Mr. Begay’s offenses occurred befor e that effective date, the amendment does not apply t o him and we need not address his ex post facto argument. Mr. Begay also asserts that section 3583(e)(3), the statute in effect at the time of his offenses, did not authorize imposition of a term of supervised release following incarceration. The Court held to the con trary in Johnson , however, stating that “in applying the law as before the ena ctment of subsection (h), district courts have the authority to order terms of supervi sed release following reimprisonment.” Id. at *9. The district court did not err in resenten cing Mr. Begay. We AFFIRM the judgment of the district court. ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge