UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-7860

HOWARD JEFF BROWN,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Rebecca B. Smith, District Judge.

(CR-92-88)

Submitted: May 29, 1998

Decided: June 22, 1998

Before LUTTIG and MOTZ, Circuit Judges, and BUTZNER,

Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Howard Jeff Brown, Appellant Pro Se. Charles Dee Griffith, Jr.,

OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Howard Jeff Brown appeals the district court's order denying his

Motion to Correct District Court Error in Imposing a New Term of

Supervised Release. Finding that the district court's application of 18

U.S.C. § 3583(h) (1994) to Brown did not violate the Ex Post Facto

Clause, we affirm the decision of the district court.

Brown pleaded guilty to conspiracy to distribute and to possess

with intent to distribute over five kilograms of cocaine and over fifty

grams of crack cocaine, in violation of 21 U.S.C§ 846 (1994) (Class

A felony). In December 1992, the court sentenced him to seventy-two

months' imprisonment, awarded him credit for forty-seven months

already served, and imposed a five-year term of supervised release,

which commenced on July 22, 1994. In May 1995, the court found

that Brown had violated the terms of his supervised release and therefore revoked the original term of supervised release and ordered him

to serve twenty-four months' imprisonment, followed by a three-year

term of supervised release.

Brown filed a Motion to Correct District Court Error in Imposing

a New Term of Supervised Release, Not Authorized by Statute. The

district court denied the motion, finding that the amendment to 18

U.S.C. § 3583(h) authorized the court to reimpose supervised release

after revocation of the original term of supervised release. Brown

timely appeals, contending that the district court did not have the

authority to impose a new term of supervised release after the revocation of his original term and that application of§ 3583(h) to his sentence violates the Ex Post Facto Clause.

A law violates the Ex Post Facto Clause if it is (1) retrospective

and (2) disadvantages the offender by altering the definition of the

criminal conduct or increasing the punishment for the crime. Brown

does not claim the new law alters the definition of the crime. Thus,

Brown's sentence can only violate the Ex Post Facto Clause if it

increases the penalty he could have received for his crimes. We find

that the district court's application of the amendment to § 3583(h) to

Brown did not violate the Ex Post Facto Clause. The amendment

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authorizing the reimposition of a term of supervised release after a

revocation of the original term and an imposition of a term of imprisonment did not increase the punishment that Brown could have

received for his crime and therefore did not disadvantage him. See

United States v. Lominac, No. 96-4282, 1998 WL 230576, at 6, 10 n.9

(4th Cir. May 11, 1998).

Because Brown was convicted of a Class A felony under the law

prior to § 3583(h), Brown could have been sentenced to up to five

years of imprisonment for violating his supervised release terms. 18

U.S.C. § 3583(e)(3). After § 3583(h)'s enactment, Brown's sentence

for violating his supervised release could have been composed of

imprisonment or supervised release, but the two combined could not

have exceeded five years. 18 U.S.C. § 3583(h). Since the amount of

time Brown could have been sentenced to under § 3583(e)(3) was not

increased by § 3583(h), Brown was not disadvantaged by the law.

Accordingly, we affirm the decision of the district court. 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

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