* This order and judgment is not binding precedent, e xcept under the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

### AUG 3 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. RANDOLPH BLATTER,

Defendant-Appellant. No. 99-1545 (D.C. No. 93-CR-276-S) (D. Colo.)

ORDER AND JUDGMENT *

Before McKAY , PORFILIO , and ANDERSON , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Randolph Blatter appeals from a judgment of the dis trict court revoking his supervised release. He argues that the district co urt unlawfully extended the time of supervision beyond the time allowed by statute, and accordingly lost jurisdiction. We affirm.

BACKGROUND Mr. Blatter was convicted in 1994 of violating 18 U .S.C. § 1542, False Statement on a Passport Application. He was senten ced to six months custody to be followed by three years of supervised release. At the time of sentencing he was serving a state sentence on an unrelated convic tion. Upon his release from state custody on June 16, 1996, state parole and th e federal supervised release commenced concurrently. Mr. Blatter was required to participate in substanc e abuse testing and treatment for both the state and federal supervisio n. The testing revealed that Mr. Blatter continued to use illegal substances. As a result, he was arrested by his state parole officer and his parole was revoked on March 25, 1997. A warrant for violation of supervised release was issued on March26, 1997. At the violation hearing held the following month the district courtcontinued supervised release.-3-

When Mr. Blatter was released from state custody onFebruary 12, 1998 his supervised release resumed. He was released from s tate parole on October 6, 1998. Mr. Blatter continued to have problems with illegal substance abuse, including failure to appear for drug testing, a con dition of his supervised release, and, on October 12, 1999, a warrant was issued for violation of supervised release. On October 18, he was arrested. Subsequently, following a hearing, the district cou rt revoked supervised release and sentenced Mr. Blatter to 14 months inca rceration.

DISCUSSION Mr. Blatter appears to argue that the district court erred at the 1997 revocation hearing by continuing his supervised rel ease in contravention of 18 U.S.C. § 3583(g). That section provides that “[i]f the defendant (1) possesses a controlled substance; ... or (3) refuses to comply with drug testing imposed as a condition of supervised release[,] the court shall revoke the term of supervised release and require the defendant to serve a term o f imprisonment ....” Mr. Blatter contends that had the district court revoke d his supervised release in 1997 as required by the statute, his supervised release would not have been tolled during the time he was in state custody. See 18 U.S.C. § 3624(e) (“A term of-4-

supervised release does not run during any period i n which the person is imprisoned in connection with a conviction for a Fe deral, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.”). And had Mr. Blattner’s supervised release not been toll ed while he was in state custody, the period of supervised release would hav e expired before the issuance of the violator warrant in October 1999. Thus, the argument goes, the district court lacked jurisdiction to revoke Mr. Blatter’s s upervised release and impose a prison term. This argument lacks merit. We note that Mr. Blatter did not raise this argumen t below. Although counsel for Mr. Blatter indicates in her brief thatshe raised the issue below, it is clear from a review of the transcript that she with drew the argument. However, a challenge to subject matter jurisdiction may be raised at any time. See United States v. Burch , 169 F.3d 666, 668 (10th Cir. 1999). While we agree with Mr. Blatter that the district c ourt in 1997 was required to terminate the term of supervised release under § 3583(g), we do not agree that as a result of the failure of the district court to follow the statutory mandate in 1997 that supervised release terminated, and theref ore the district court did not have jurisdiction in 1999 to impose a prison term f or violation of supervised release. Mr. Blatter cites to no authority that fa ilure to follow the1 We note that in the proceedings below Mr. Blatter o nce again requested the

district court to continue his supervised release. -5- dictates of § 3583(g) results in the loss of jurisd iction to revoke supervised release upon a subsequent violation. 1 The judgment of the United States District Court fo r the District of Colorado is AFFIRMED

.

Entered for the Court

John C. Porfilio Circuit Judge