* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 9/23/96 FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. EDMUND DEE WASH,

Defendant-Appellant. No. 95-4156 (D.C. No. 92-CR-158) (D. Utah)

ORDER AND JUDGMENT *

Before BRORBY, BARRETT, and EBEL, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.1 The government urges a remand of this case to allow the district court to

specify whether that court was acting pursuant to F ed. R. Crim. P. 35(c) or 28 U.S.C. § 2255. However, because the notice of appeal clearly designates that defendant is appealing his sentence and because def endant filed his notice of appeal in a timely manner from the entry of judgmen t on that sentence, we will treat this as a direct appeal. See generally United States v. Robinson , 62 F.3d 1282, 1283 (10th Cir. 1995)(addressing on direct ap peal sentence imposed following revocation of supervised release). -2- The issue presented by this direct appeal 1 is whether the district court violated the ex post facto clause of the United States Constitution by sentencing defendant, pursuant to 18 U.S.C. § 3583(h) and foll owing the revocation of his original term of supervised release, to both a term of imprisonment and an additional term of supervised release. Reviewing t he district court’s decision de
novo, see United States v. Cabrera-Sosa , 81 F.3d 998, 1001 (10th Cir. 1996), petition for cert. filed , (U.S. July 16, 1996)(No. 96-5205), we conclude th at the district court’s application of § 3583(h) did not v iolate the constitutional prohibition against ex post facto laws and we, ther efore, affirm. In July 1992, defendant pled guilty to involuntary manslaughter as a result of the March 1992 death of Joellyn Bad Hawk. Defen dant received a sentence of thirty-six months’ imprisonment and one year of sup ervised release. In July 1995, the district court revoked defendant’s term of supe rvised release, after finding that defendant had violated the conditions of that release. The court, pursuant to § 3583(h), which did not become effective until Sep tember 1994, sentenced-3-

defendant to both a term of imprisonment and an add itional term of supervised release. The ex post facto clause prohibits legislation thatinflicts a greater punishment than that available at the time the crim e was committed. Collins v. Youngblood , 497 U.S. 37, 41-42 (1990)(citing Calder v. Bull , 3 U.S. 386, 390 (1798)). “[C]entral to the expostfacto prohibition is a concern for ‘the lack of fair notice and governmental restraint when the leg islature increases punishment beyond what was prescribed when the crime was consu mmated.’” Miller v. Florida , 482 U.S. 423, 430 (1987)(quoting Weaver v. Graham , 450 U.S. 24, 30 (1981)). “To fall within the expostfacto prohibition . . . the law [first] ‘must be retrospective, that is, it must apply to events occ urring before its enactment’; and second, ‘it must disadvantage the offender affected by it.’” Id. (quoting Weaver , 450 U.S. at 29). “A law is retrospective if it ‘ch anges the legal consequences of acts completed before its effective date.’” Id. (quoting Weaver , 450 U.S. at 31). Section 3583(h), enacted subsequent to the conduct underlying defendant’s involuntary manslaughter conviction, expressly auth orizes, in specific instances following the revocation of a term of supervised re lease, the imposition of both a term of imprisonment and an additional term of supe rvised release. The law in this circuit at the time defendant committed his of fense, however, also permitted the imposition of terms of both imprisonment and supervised release upon-4-

revocation of a term of supervised release. 18 U.S .C. § 3583(e); United States v. Boling , 947 F.2d 1461, 1463 (10th Cir. 1991)(interpreting § 3583(e) to permit imposition of both terms of imprisonment and superv ised release), overruled by United States v. Rockwell , 984 F.2d 1112 (10th Cir.), cert. denied , 508 U.S. 966 (1993). Because § 3583(h), therefore, did not incr ease the punishment available for the revocation of supervised release at the tim e defendant committed his offense, the application of that subsection to defe ndant does not violate the ex post facto clause. This court’s decision in Rockwell , 984 F.2d 1112, does not change this result. In Rockwell , decided after defendant’s offense, conviction, an d sentence, this court overruled Boling and joined the majority of circuits interpreting § 3583(e) to allow a district court, upon revocatio n of supervised release, either to impose a term of imprisonment or to extend the defe ndant’s supervised release, but not both. Id. at 1117. Nonetheless, the existence of Boling gave defendant fair notice at the time of his offense that he woul d be subject to both a term of imprisonment and an additional term of supervised r elease should his original term of supervised release be revoked. See Dobbert v. Florida , 432 U.S. 282, 297-98 (1977)(existence of Florida’s death penalty scheme, in effect at time defendant committed murders, was operative fact war ning defendant that he would be subject to death penalty should he be conv icted of capital murder,-5-

regardless of subsequent decision overturning death penalty scheme as unconstitutional and application of newly enactmentdeath penalty statute to defendant); see also Miller , 482 U.S. at 431 (in Dobbert , ex post facto concerns were satisfied because statute on books at time def endant committed crimes warned him of specific punishment prescribed for fi rst degree murder). The parties do agree, however, that the district co urt erred in imposing, upon revocation of the original term of supervised release, a ten-month term of imprisonment followed by a one-year term of additio nal supervised release. See 18 U.S.C. § 3583(h)(“The length of such a term of s upervised release [imposed upon revocation of a previous supervised release te rm] 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.”). Defendant asserts, and the government concedes, that the district court in thi s case had authority only to sentence defendant to a two-month term of supervise d release. We, therefore, remand this case to the district court for resenten cing.-6-

The judgment of the United States District Court fo r the District of Utah is, therefore, AFFIRMED in part, and this cause is REMANDED to the district court for vacatur of defendant’s sentence and for furtherproceedings consistent with this order and judgment.

Entered for the Court

James E. Barrett Senior Circuit Judge