United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-4187

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. Joseph James Bongiorno, also known * [PUBLISHED] as Joe Bongiorno, also known as * Papa Joe, * * Appellant. *

___________ Submitted: February 6, 1998 Filed: March 25, 1998

___________ Befor e BOWMAN, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circui t Judges.

___________ PER CURIAM. After Joseph James Bongiorno pleaded guilty to having violated 21 U.S.C
. §§ 841(a)(1) and 846, the district court sentenced him to 41 months & imprisonment and six yea rs & supervised release. On appeal, Bongiorno argues that the district court & s impositio n

of the six-year supervised release term violates the three-year maximu m supervised release term for a Class C felony found in 18 U.S.C. § 3583(b)(2). He-2-

addi tionallyargues that the district court erred in imposing special conditions o f supervised release relating to community service and alcohol. Initially, we not

e that our review is for plain error, because Bongiorno failed to raise either of his arguments below. See United States v. Manzer , 69 F.3d 222, 23 1 (8thCir. 1995); see also Fed. R. Crim. P. 52(b). Plain error occurs when the district co urt deviated from a legal rule, the error is clear under current law, and the erro r affected the defendant & s substantial rights. See United States v. Montanye , 996 F.2d 190, 192 (8th Cir. 1993) (en banc).
We reject Bongiorno & s argument that the imposition of the six-year term o f supervised release was plainly errone ous. See United States v. LeMay , 952 F.2d 995, 998 (8th Cir. 1991) (p er curiam) (supervised release term is plainly erroneous when it is imposed in violation of law). The applicable sentencing statute, 21 U.S.C
. § 841(b)(1) (C), subjected Bongiorno to a supervised release term of “at least thre e ye ars.” Although the minimum term under section 841(b)(1)(C) is the same as th e maximum term under section 3583(b)(2), we disagree with Bongiorno that the six-year term was illegal. As we e xplained in LeMay , the Anti-Drug Abuse Act of 1986--under whic h Bongiorno was sentenced--amended section 3583(b) by adding the caveat “[e]xcept as otherwise provided” to the maximum supervi sed release terms authorized therein so as to eliminate any conflict with statutes such as section 841(b), which authoriz e supervisedrelease terms that exceed those set forth in section 3583(b). See LeMay , 952 F.2d at 998 (where § 3583(b) authorized maximum supervised release term of five years and § 841(b)(1)(A) required supervised release term of at least five years, tenyear term of supervised release was not illeg al); see also United States v. Eng , 14 F.3d 165, 172 (2d Cir. 1994) (concluding li felong term of supervised release did not violate § 3583(b), even though five-year minimum supervised release term in § 841 was same as maximum supervised release term in § 3583(b)).-3-

We also reject Bongiorno & s challenges to the special conditions of his supervised release. The requirement to complete community service is expressly authorized under U.S. Sente ncing Guidelines Manual § 5F1.3 (1997), and we decline to exercise ou r rem edialdiscretion to review the condition that Bongiorno not consume or hav e anything to do with alcohol during the period of supervised release. The judgment is affirmed. MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting. In this case, the district court ignored our holdings in United States v. Bass , 121 F.3d 1218 (8th Cir. 1997), United States v. Stoural , 990 F.2d 372 (8th Cir. 1993), and United States v. Prendergast , 979 F.2d 1289 (8th Cir. 1992), and imposed conditions on the defendant in this case that were clearly illegal. In sentencing the defendant, the distr ict court conditioned a six-year term of supervised release on the defendant no t using or p ossessing alcohol and submitting to testing to detect the use of alcohol
. Unde r the terms of his supervised release, moreover, the defendant was subject t o warrantless searches and seizures to determine whether he possessed alcohol. Despite t he plain unlawfulness of these terms in cases like the present one, i n which there is no evidence whatever that alcohol was in any way related to the offense, the court concludes that the conditions imposed did not affect the defendant' s substantial rights. Given the severity of the restrictions, I am unable to accede to this characteriz ation. Given, too, the likelihood of a successful claim that counsel wa s ineffective at sentencing for not objecting to the conditions im posed, the court's holding seems to me not only incorrect but entirely ineffective in the long term. I therefore respectfully dissent.-4-

A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.