UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-6939

JIMMIE LEE SWANN,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Asheville.

Lacy H. Thornburg, District Judge.

(CR-89-140, CA-99-47-1) 

Submitted: October 20, 1999

Decided: November 9, 1999

Before MURNAGHAN, HAMILTON, and LUTTIG,

Circuit Judges.

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Affirmed in part and vacated and reversed in part by unpublished per

curiam opinion.

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COUNSEL

Jimmie Lee Swann, Appellant Pro Se. Brian Lee Whisler, OFFICE

OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,

for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Jimmie Swann seeks to appeal the district court's order denying

relief on his motion filed under 28 U.S.C.A. § 2255 (West Supp.

1999). Swann's motion challenged the propriety of a district court

order extending the period of his supervised release, and a subsequent

order revoking his supervised release and ordering Swann incarcerated for a period of one year. Swann asserts that the district court

lacked authority to extend the term of his supervised release based on

his use of drugs in violation of the conditions of his supervised

release. We agree that Swann's possession of a controlled substance

during his supervised release required revocation of his supervised

release and incarceration under 18 U.S.C.A. § 3583(g) (West Supp.

1999). See United States v. Clark, 30 F.3d 23, 24-26 (4th Cir. 1994).

We disagree, however, with Swann's position that under the pre1994 version of § 3583(g), the court should have imposed a period of

incarceration not exceeding eight months for his second violation of

the conditions of his supervised release, which also involved Swann's

abuse of drugs. Because the former version of § 3583(g) did not

address the maximum term of incarceration for a subsection

(g) violation, even before 1994 district courts were authorized to look

to the maximum term allowed under 18 U.S.C.A. § 3583(e) (West

Supp. 1999), when setting the term of incarceration for a subsection

(g) violation of supervised release. See United States v. Davis, 53

F.3d 638, 640 n.4 (4th Cir. 1995); United States v. Rockwell, 984 F.2d

1112, 1115 (10th Cir. 1993) (citing cases). Subsection (e) authorized

incarceration of up to two years for a Class D felon such as Swann.

See § 3583(e). Moreover, the pre-1994 version of § 3583(e) also permitted two additional years incarceration because that was the original term of Swann's supervised release. See United States v. Barrow,

913 F. Supp. 458, 460 (E.D. Va. 1996). Hence, the district court properly found that subsection (e) authorized the one-year term of incar-

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ceration imposed on Swann, and he was not prejudiced by the

application of the current version of subsection (e).

Accordingly, we grant a certificate of appealability and reverse and

vacate that portion of the district court's order upholding the extension of the term of Swann's supervised release. In all other respects,

the order of the district court is affirmed. We dispense with oral argument because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the decisional process.

AFFIRMED IN PART, REVERSED AND VACATED IN PART

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