F I L E D

United States Court of Appeals

Tenth Circuit

MAY 17 2002

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KENDALL ROSSEL SWENSON,

Defendant-Appellant,

No. 01-4179

Appeal from the United States District Court

for the District of Utah

(D.C. No. 2:98-CR-376-01-W)

Submitted on the briefs:

Deirdre A. Gorman, Ogden, Utah,for Defendant-Appellant.

Paul M. Warner, United States Attorney, and Wayne T. Dance, Assistant United

States Attorney, Appellate Division, Salt Lake City, Utah, for Plaintiff-Appellee. 

Before SEYMOUR, HENRY and BRISCOE, Circuit Judges.

SEYMOUR, Circuit Judge.
1After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.

2Mr. Swenson failed to file a notice of appeal within the required ten day

period after imposition of his sentence as required under FED. R. APP. P.

4(b)(1)(A)(i). Because of the untimely nature of Mr. Swenson’s filing, we issued

an order to show cause as to our jurisdiction in the case. Subsequent to issuance

of that order the district court granted Mr. Swenson’s motion for an extension of

time in which to file an appeal as well as a notice of appeal. Our jurisdictional

question is thus moot. See Hinton v. City of Elwood, 997 F.2d 774, 777-78 (10th

Cir. 1993) (an otherwise untimely notice of appeal is validated by the district

court’s granting of a subsequent timely motion to extend the time to file a notice

of appeal). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a). 

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Kendall R. Swenson appeals the sentence imposed by the district court

stemming from his plea of guilty to one count of bank larceny under 18 U.S.C. §§

2113(b) and 2.1 Mr. Swenson contends the sentence of twenty-four months in

prison on his second revocation of supervised release exceeds the statutory

maximum allowed under 18 U.S.C. § 3583(e)(3). In response, the government

concedes the point. For the reasons set out below, we reverse the sentence

imposed by the district court and remand for resentencing.2

Mr. Swenson was indicted for bank larceny and aiding and abetting in

violation of 18 U.S.C. §§ 2113(b) and 2. He entered a plea of guilty to the

indictment and on December 21, 1998, the district court sentenced him to twentyone months in prison followed by a three-year term of supervised release. On
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August 1, 2000, Mr. Swenson was found in violation of supervised release. The

district court then sentenced him to ten months in prison with a thirty-one-month

term of supervised release. On July 16, 2001, the court again found Mr. Swenson

violated the terms of supervised release. On August 1, 2001, the court sentenced

him to twenty-four months in prison. 

Mr. Swenson filed this appeal claiming the latest sentence of twenty-four

months in prison exceeds the statutory maximum of two years allowed under 18

U.S.C. § 3583(e)(3) for a Class C felony because the district court failed to

aggregate all terms of imprisonment for violations of supervised release stemming

from the same underlying conviction. In other words, Mr. Swenson contends the

district court erred when it failed to deduct the term of imprisonment imposed

pursuant to his first supervised release revocation. 

Title 18 U.S.C. § 3583(e)(3) provides the court may: 

revoke a term of supervised release, and require the defendant to serve in

prison all or part of the term of supervised release authorized by statute for

the offense that resulted in such term of supervised release without credit

for time previously served on postrelease supervision. . . except that a

defendant whose term is revoked under this paragraph may not be required

to serve more than. . . 2 years in prison if such offense is a class C. . . 

felony. . . .

It is a question of first impression in this circuit whether the district court, in

applying section 3583(e)(3), should have deducted the prior term of imprisonment

imposed on Mr. Swenson’s first violation of supervised release. Three other
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circuits have ruled on this very question and are in agreement: all revocation

prison sentences relating to the same underlying class C or D felony offense

should be aggregated in calculating the two-year statutory maximum allowed in

section 3583(e)(3). See United States v. Merced, 263 F.3d 34, 37 (2d Cir. 2001);

United States v. Brings Plenty, 188 F.3d 1051, 1053 (8th Cir. 1999); United States

v. Beals, 87 F.3d 854, 858 (7th Cir. 1996), overruled on other grounds by United

States v. Withers, 128 F.3d 1167 (7th Cir. 1997). 

We agree with the reasoning of our sister circuits and now join them. 

Under this reading of section 3583(e)(3), given that Mr. Swenson had already

served ten months pursuant to the sentence imposed for his first violation, the

district court’s sentence for the second violation should not have exceeded

fourteen months.

We VACATE the sentence imposed by the district court and REMAND for

resentencing in keeping with this order.