## 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-Appell ant. 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.1 After examining the briefs and appellate record, th is 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). Th e cause is therefore ordered submitted without oral argument.

2 Mr. Swenson failed to file a notice of appeal withi n the required ten day period after imposition of his sentence as required under F ED
. R. A PP
. P. 4(b)(1)(A)(i). Because of the untimely nature of M r. Swenson’s filing, we issued an order to show cause as to our jurisdiction in th e case. Subsequent to issuance of that order the district court granted Mr. Swenso n’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 e xtend the time to file a notice of appeal). We exercise jurisdiction pursuant to 2 8 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

-2- Kendall R. Swenson appeals the sentence imposed by the district court stemming from his plea of guilty to one count of ba nk 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 relea se exceeds the statutory maximum allowed under 18 U.S.C. § 3583(e)(3). In r esponse, the government concedes the point. For the reasons set out below, we reverse the sentence imposed by the district court and remand for resent encing. 2 Mr. Swenson was indicted for bank larceny and aidin g and abetting in violation of 18 U.S.C. §§ 2113(b) and 2. He entere d a plea of guilty to the indictment and on December 21, 1998, the district c ourt sentenced him to twentyone months in prison followed by a three-year term of supervised release. On-3-

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 Augus t 1, 2001, the court sentenced him to twenty-four months in prison. Mr. Swenson filed this appeal claiming the latest s entence 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 th e district court failed to aggregate all terms of imprisonment for violations of supervised release stemming from the same underlying conviction. In other word s, Mr. Swenson contends the district court erred when it failed to deduct the t erm 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 th e defendant to serve in prison all or part of the term of supervised releas e authorized by statute for the offense that resulted in such term of supervise d release without credit for time previously served on postrelease supervisi on. . . except that a defendant whose term is revoked under this paragrap h 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 circui t whether the district court, in applying section 3583(e)(3), should have deducted t he prior term of imprisonment imposed on Mr. Swenson’s first violation of supervi sed release. Three other-4-

circuits have ruled on this very question and are i n agreement: all revocation prison sentences relating to the same underlying cl ass C or D felony offense should be aggregated in calculating the two-year st atutory 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.