* District Judge of the Western District of Louisiana, sitting by designation. 

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20516

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RAMIRO VERA, JR., 

Defendant - Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before GARZA and DENNIS, Circuit Judges, and MINALDI,* District Judge.

EMILIO M. GARZA, Circuit Judge:

Ramiro Vera, Jr. appeals his sentence of 25 months of supervised release,

which the district court imposed following its second revocation of Vera’s

supervised release. Vera contends that the supervised release term imposed by

the district court exceeded the statutory maximum under 18 U.S.C. § 3583(h).

Specifically, he argues that the district court erred in failing to reduce the

maximum supervised release term by the term of imprisonment he received

upon his first revocation. For the following reasons, we VACATE and REMAND

for resentencing. 

I

United States Court of Appeals

Fifth Circuit

F I L E D

September 8, 2008

Charles R. Fulbruge III

Clerk
No. 07-20516

2

Vera was charged with knowingly transporting an illegal alien in violation

of 8 U.S.C. § 1324. He pled guilty to the offense and was sentenced to 21 months

of imprisonment and three years of supervised release.

After serving his time in custody, Vera began his first term of supervised

release. About three months later, the United States Probation Office moved to

revoke Vera’s supervised release, alleging Vera’s possession and use of a

controlled substance; failure to follow the substance abuse treatment program

rules; failure to report to his probation officer; and failure to follow instructions

from his probation officer. Vera pled “true” to all of the violations and his

supervised release was revoked. Following this first revocation, the district

court sentenced Vera to six months imprisonment and 30 months of supervised

release. 

Vera was released from custody and began serving his second term of

supervised release. Again, about three months later, the Probation Office moved

to revoke Vera’s supervised release, alleging essentially the same violations that

led to Vera’s previous revocation. Once more, Vera pled “true” to all of the

violations. And once more, the district court revoked Vera’s supervised release.

Following the second revocation, Vera was sentenced to 11 months of

imprisonment and 25 months of supervised release.

Vera filed a motion to correct his sentence under Federal Rule of Criminal

Procedure 35(a). He argued that the district court should have added the sixmonth term of imprisonmentthat he received after his first revocation to the 11-

month term of imprisonment that he received after his second revocation and

then subtracted the sum of those two terms from the statutory maximum term

of supervised release to which he was subject. Using Vera’s equation, he should

have received 19 months of supervised release, not the 25 months that the

district court imposed. The district court denied Vera’s motion. Vera appeals.
No. 07-20516

3

II

Vera argues thatthe supervised release term imposed by the district court

exceeded the statutory maximum under 18 U.S.C. § 3583(h). Thus, regardless

of whether Vera properly preserved an objection to his sentence, “because a

sentence which exceeds the statutory maximum is an illegal sentence and

therefore constitutes plain error, our review ofthe issue presented in this appeal

will be de novo.” United States v. Sias, 227 F.3d 244, 246 (5th Cir. 2000).

III

Vera argues thatthe district court erred in calculating the maximum term

of supervised release applicable to his second revocation. He argues that in

calculating the maximum supervised release term the district court should have

credited him for the six-month term of imprisonment he received after his first

revocation.

Section 3583(h) authorizes the imposition of a new term of supervised

release upon revocation of a prior term of supervised release. “When a term of

supervised release is revoked and the defendant is required to serve a term of

imprisonment,the court may include a requirement that the defendant be placed

on a term of supervised release after imprisonment.” 18 U.S.C. § 3583(h). In

addition, § 3583(h) supplies the formula for calculating the maximum term of

supervised release upon revocation: “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.” 18

U.S.C. § 3583(h) (emphasis added).

The formula for determining the maximum term of supervised release that

may be imposed upon revocation proceeds in two steps. First, the district court

must identify the term of supervised release authorized for the defendant’s
No. 07-20516

4

original offense. Vera’s original offense, transporting an illegal alien, carries a

maximum ten-year sentence, 8 U.S.C. § 1324(a)(1)(B)(i), and thus is a class C

felony, 18 U.S.C. § 3559(a)(3). A class C felony carries an authorized term of

supervised release of “not more than three years.” 18 U.S.C. § 3583(b)(2).

Therefore, Vera’s original offense carried an authorized supervised release term

of 36 months.

The second step is to subtract from the originally authorized supervised

release term “any term of imprisonment that was imposed upon revocation of

supervised release.” § 3585(h). The dispute in this case involves the second step.

Vera argues that the phrase “less any term of imprisonment that was

imposed upon revocation of supervised release” means that the maximum

allowable supervised release term following multiple revocations must be

reduced by the aggregate length of any terms of imprisonment that have been

imposed upon revocation. In his case, that would include both the six-month

term of imprisonment he received after his first revocation and the 11-month

term of imprisonment he received after his second revocation, for a total of 17

months. Subtracting this total (17) from the originally authorized term of

supervised release (36), the maximum term of supervised release on Vera’s

second revocation was 19 months, not the 25 months imposed by the district

court. 

The Government argues that“any term of imprisonment that was imposed

upon revocation of supervised release” refers only to the term of imprisonment

imposed on the current revocation, and nothing more. On the Government’s

view, the district court was correct to subtract only the 11-month term of

imprisonment imposed upon Vera’s second revocation and thus to calculate

Vera’s maximum term of supervised release at 25 months. 
No. 07-20516

5

Our sister circuits that have addressed this issue agree with Vera. The

Government, on the other hand, has not cited any circuit decision interpreting

§ 3583(h) in the manner it suggests. 

In United States v. Maxwell, the Fourth Circuit explained: 

When the word “any” is properly read in its § 3583(h) statutory

context, Webster’sThird New International Dictionary provides that

the word “any” means “all.” See id. at 97 (2d ed. 1981). Specifically,

Webster’s Third New International Dictionary provides that when

the word “any” is “used as a function word to indicate the maximum

or whole of a number or quantity,” for example, “give me [any]

letters you find” and “he needs [any] help he can get,” the word

“any” means “all.” Id. Here, the word “any” in the phrase “less any

term of imprisonment that was imposed upon revocation of

supervised release,” § 3583(h) (emphasis added), is obviously used

as a function word to indicate the maximum or whole of a number

or quantity just as the word “any”is used in the dictionary examples

quoted above. 

285 F.3d 336, 341 (4th Cir. 2002). Based on these observations, the Fourth

Circuit held that “the plain meaning of the phrase ‘less any term of

imprisonment that was imposed upon revocation of supervised release’ in

§ 3583(h) is that the prison term in the current revocation sentence, together

with all prison time imposed under any prior revocation sentence or sentences,

must be aggregated.” Id. 

In an earlier decision, the Eighth Circuit reached the same conclusion:

“We conclude that the plain meaning of the reference to ‘any term of

imprisonment’ includes the prison term in the current revocation sentence

together with all prison time served under any prior revocation sentence(s).”

United States v. Brings Plenty, 188 F.3d 1051, 1054 (8th Cir. 1999). The Eighth

Circuit found “strong support” for its holding in the legislative history of the

1994 amendments to § 3583, discussing a bill which also contained the “any term

of imprisonment” language currently used in § 3583(h). Id. In discussing the

practical effect of the legislation, the bill sponsor offered the example of a
No. 07-20516

6

defendant who had been revoked multiple times and received multiple

imprisonment terms and then explained that “under [the amendments], a

defendant would always be credited for incarceration time against both the cap

on re-imprisonment and the maximum authorized period of supervised release.”

Id. (alteration in original; emphasis added) (quoting 137 Cong. Rec. S7769-72

(daily ed. June 13, 1991)). 

The Eleventh Circuit relied on the same legislative history and reached

the same conclusion as the Fourth and the Eighth Circuit. The Eleventh Circuit

explained: 

The relevant legislative history and case law from other circuits

indicate that subsection (h) was intended to provide credit for the

aggregate of prison terms served on prior revocations toward the

maximum amount of supervised release permitted by statute. Upon

multiple revocations, subsection (h) authorizes the imposition of an

additionalterm of supervised release, up to the statutory maximum,

“less any term of imprisonment that was imposed upon revocation

of supervised release.” 18 U.S.C. § 3583(h). Accordingly, we hold

that, under subsection (h), the maximum allowable supervised

release following multiple revocations must be reduced by the

aggregate length of any terms of imprisonment that have been

imposed upon revocation.

United States v. Mazarky, 499 F.3d 1246, 1250 (11th Cir. 2007).

The Government’s arguments in response to this weight of authority offer

little resistance. First, the Government notes that § 3583(h) was amended by

the PROTECT Act of 2003 and that all of the above-cited decisions interpreted

the pre-2003 version of § 3583(h). See Prosecutorial Remedies and Other Tools

to End the Exploitation of Children Today Act of 2003 (“PROTECT Act”), Pub.

L. 108-21, § 101, 117 Stat. 650, 651. However, the amendment to § 3583(h) left

untouched the relevant language outlining the formula for calculating the

maximum term of supervised release upon revocation. Both before and after the

PROTECT Act, a district court must calculate the maximum supervised release

term based on the supervised release term authorized for the original offense
No. 07-20516

1 The first sentence of the pre-2003 version of § 3583(h) provided: “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.” (emphasis added). Since the 2003 amendment, § 3583(h) has read:

“When a term of supervised release is revoked and the defendant is required to serve a term

of imprisonment, the court may include a requirement that the defendant be placed on a term

of supervised release after imprisonment.”

2 The Government makes much of the fact that the PROTECT Act also amended

§ 3583(e)(3), which articulates the maximum term of imprisonment that may be imposed upon

revocation of supervised release. Interpreting the pre-2003 version of subsection (e)(3), courts

have held that in multiple revocation cases, the maximum term of imprisonment that may be

imposed upon revocation is determined on a cumulative basis and not separately each time

supervised release is revoked. See, e.g., United States v. Jackson, 329 F.3d 406, 407–08 (5th

Cir. 2003) (collecting cases). The aggregation principle for calculating the maximum term of

imprisonment upon revocation under the pre-2003 version of subsection (e)(3) is thus similar

to the aggregation principle for calculating the maximum term of supervised release upon

revocation under subsection (h). 

However, the PROTECT Act amended subsection (e)(3) in 2003 to state that the

maximum term of imprisonment upon revocation applies “on any such revocation.” Section

3583(e)(3) now reads “that a defendant whose term is revoked under this paragraph may not

be required to serve on any such revocation more than” the enumerated maximum term of

imprisonment. (emphasis added). Courts reviewing this amended language have concluded

7

“less any term of imprisonment that was imposed upon revocation of supervised

release.” Thus, the precise language that the Fourth, Eighth, and Eleventh

Circuits analyzed to conclude that the maximum supervised release term must

be reduced by the aggregate length of any terms of imprisonmentthat have been

imposed upon revocation has not changed.

The 2003 amendment to § 3583(h) addressed a different issue. The

amendment removed the pre-2003 qualification that a new term of supervised

release could be imposed only ifthe post-revocation prison sentence imposed was

less than the maximum term of imprisonment authorized under § 3583(e)(3).

The amendmentthus addressed when the district court could impose supervised

release upon revocation, but did not alter the formula for calculating how much

supervised release the district court could impose.1 The Government’s reliance

on the 2003 amendment to § 3583(h) is unavailing.2
No. 07-20516

that the maximum term of imprisonment that can be imposed upon revocation now applies on

a per revocation basis, without regard to any term of imprisonment imposed in previous

revocations. See, e.g., United States v. Lewis, 519 F.3d 822, 824–25 (8th Cir. 2008) (collecting

cases). 

We take no position on what effect, if any, the 2003 amendment to subsection (e)(3) had

on the calculation ofthe maximum term of imprisonmentthat may be imposed upon revocation

of supervised release. That issue is not before the court. We find it noteworthy however that

Congress did not insert any language like that added in subsection (e)(3) to subsection (h). We

cannot conclude that the change to subsection (e)(3) altered the prior interpretation of

subsection (h). Had Congress wished to make such a change to subsection (h), the amendment

to subsection (e)(3) indicates that Congress was aware potentially of how to do so. Yet, the

relevant language in subsection (h) remained unchanged. 

8

Next, the Government cites an unpublished decision from our circuit,

United States v. Sifuentes, 204 Fed. Appx. 477 (5th Cir. 2007), and alleges that

we have already rejected the argument that Vera now raises. In Sifuentes, the

defendant contended that “her 28-month term of supervised release and her

eight-month prison sentence exceeds the statutory maximum because the total

length of her supervised release, including 20 months previously served, will

violate the statutory maximum term of 36 months of supervised release.” The

issue in Sifuentes was whether the 20 months that the defendant had previously

served on supervised release for her original conviction should be credited

toward the maximum term of supervised release that could be imposed on

revocation. That case did not concern the aggregation of multiple postrevocation terms of imprisonment, as does this case. Therefore, Sifuentes does

not inform our decision in this case. The Government offers no other cases to

support its position.

We are persuaded by the well-reasoned decisions of our sister circuits. In

line with these decisions, we hold that under § 3853(h) “the maximum allowable

supervised release following multiple revocations must be reduced by the

aggregate length of any terms of imprisonment that have been imposed upon

revocation.” Mazarky, 499 F.3d at 1250. The district court erred in failing to

reduce Vera’s maximum supervised release term by the six-month term of
No. 07-20516

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imprisonment that Vera received after his first revocation. Under § 3853(h), the

maximum term of supervised release the district court could impose was 19

months. The district court exceeded the statutory maximum in sentencing Vera

to a supervised release term of 25 months. Therefore, we VACATE Vera’s

sentence and REMAND for resentencing consistent with this opinion.