1

The Honorable Howard F. Sachs, United States District Judge

for the Western District of Missouri.

____________

No. 95-3665

____________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri

Charles E. St. John, *

*

Appellant. *

____________

 Submitted: March 12, 1996

 Filed: August 19, 1996 ____________

Before McMILLIAN, BEAM and HANSEN, Circuit Judges. ____________

McMILLIAN, Circuit Judge.

Charles E. St. John appeals from a final judgment entered in

the District Court1 for the Western District of Missouri revoking

his supervised release and sentencing him to 14 months imprisonment

to be followed by 22 months supervised release. The district court

also ordered St. John to pay the balance of the fine which had been

originally imposed. For reversal, St. John argues the district

court erred in imposing a revocation sentence that included both a

term of imprisonment and a term of supervised release because 18

U.S.C. § 3583(e)(3) does not authorize supervised release upon

revocation of supervised release and because 18 U.S.C. § 3583(h),

which does authorize supervised release upon revocation of

supervised release, was not in effect at the time the offenses were
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committed. St. John argues that application of 18 U.S.C. § 3583(h)

imposes an increased penalty and thus violates the ex post facto

clause. For the reasons discussed below, we affirm the judgment of

the district court.

In December 1989 a federal grand jury indicted St. John for

conspiracy to distribute dilaudid in violation of 21 U.S.C. § 846,

seven counts of distribution of dilaudid in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(C), and unlawful possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). St. John pleaded guilty to the

seven distribution counts and the firearms count, and in September

1990 the district court sentenced him to 63 months imprisonment, 36

months supervised release and a $4,000 fine. St. John completed

his prison sentence and began serving his term of supervised

release in May 1995. Almost immediately St. John violated the

conditions of supervised release. Among other things, he

repeatedly tested positive for illegal drug use, operated a motor

vehicle under the influence of alcohol, and was arrested for

solicitation. The government filed a motion to revoke supervised

release. In October 1995 the district court held a revocation

hearing; St. John did not contest the allegations of the

violations. The district court revoked supervised release and

sentenced St. John to 14 months imprisonment to be followed by 22

months supervised release, for a total of 36 months, the length of

the original term of supervised release. The district court did

not explicitly state the statutory basis for its order. The

practical effect of the revocation sentence is that St. John will

serve in prison 14 of the 36 months of the original term of

supervised release. The district court also ordered him to pay the

balance of the fine originally imposed. This appeal followed. 

St. John argues the district court erred in sentencing him to

both a term of imprisonment and a term of supervised release
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18 U.S.C. § 3583(e)(3) provides in part: 

(e) Modification of conditions or revocation. The

court may . . . 

. . . . 

(3) 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, if the court . . .

finds by a preponderance of the evidence that

the defendant violated a condition of

supervised release, except that a defendant

whose term is revoked under this paragraph may

not be required to serve more than 5 years in

prison if the offense that resulted in the

term of supervised release is a class A

felony, more than 3 years in prison if such

offense is a class B felony, more than 2 years

in prison if such offense is a class C or D

felony, or more than one year in any other

case . . . .

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because 18 U.S.C. § 3583(e)(3)2 does not authorize the imposition,

upon revocation of supervised release, of both a term of

imprisonment and a term of supervised release. St. John argues

that, at the time he was originally sentenced in 1990, the only

court to interpret § 3583(e)(3) had held that, because § 3583(e)

was written in the disjunctive, a district court could revoke

supervised release and either impose a term of imprisonment or

modify the terms of the original supervised release, but not both.

United States v. Behnezhad, 907 F.2d 896, 898 (9th Cir. 1990). St.

John acknowledges that this court subsequently held § 3583(e)(3)

authorized imposition of a revocation sentence including both a

term of imprisonment and a term of supervised release, United

States v. Schrader, 973 F.2d 623, 624-25 (8th Cir. 1992), but he

argues that due process prohibits imposition of a sentence based on

case law decided after the offense was committed. St. John also
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18 U.S.C. § 3583(h) provides: 

(h) Supervised release following revocation. When

a term of supervised release is revoked and the defendant

is required to serve a term of imprisonment that is less

than the maximum term of imprisonment authorized under

subsection (e)(3), the court may include a requirement

that the defendant be placed on a term of supervised

release after imprisonment. The length of such a term of

supervised release 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.

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acknowledges that 18 U.S.C. § 3583(h) (effective Sept. 13, 1994),3

which Congress enacted in 1994 as part of the Violent Crime Control

Act and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 110505,

1994 U.S.C.C.A.N. (108 Stat.) 1796, 2017, specifically authorizes,

upon revocation of supervised release, the imposition of both a

term of imprisonment and a term of supervised release. However,

St. John argues that, because § 3583(h) was enacted subsequent to

his conviction and increases the penalty for the offenses, applying

§ 3583(h) to him would violate the ex post facto clause. 

Article I, § 9, of the Constitution prohibits Congress from

passing ex post facto laws. "[A]ny statute . . . which makes more

burdensome the punishment for a crime, after its commission, . . .

is prohibited as ex post facto." Collins v. Youngblood, 497 U.S.

37, 42 (1990). "[T]o fall within the ex post facto prohibition,

two critical elements must be present: first, the law ‘must be

retrospective, that is, it must apply to events occurring before

its enactment’; and second, ‘it must disadvantage the offender

affected by it.’" Miller v. Florida, 482 U.S. 423, 430 (1987),

citing Weaver v. Graham, 450 U.S. 24, 29 (1981). Cf. California

Dep’t of Corrections v. Morales, 115 S. Ct. 1597, 1602 n.3 (1995)

(shifting focus from whether the legislative change "produces some

sort of ambiguous ‘disadvantage’" to whether legislative change

"alters definition of criminal conduct or increases the penalty by
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which a crime is punishable"). "It is ‘axiomatic that for a law to

be ex post facto it must be more onerous than the prior law.’"

Miller v. Florida, 482 U.S. at 431, citing Dobbert v. Florida, 432

U.S. 282, 294 (1977); see, e.g., United States v. Bell, 991 F.2d

1445, 1448 (8th Cir. 1993) (more burdensome punishment after crime

was committed violates ex post facto clause). 

We address first St. John’s ex post facto argument based upon

the Ninth Circuit’s construction of 18 U.S.C. § 3583(e)(3) in

Behnezhad. This argument must fail because "the ex post facto

clause does not apply to judicial constructions of statutes."

United States v. Burnom, 27 F.3d 283, 284 (7th Cir. 1994); see,

e.g., United States v. Levi, 2 F.3d 842, 844 (8th Cir. 1993)

(noting ex post facto analysis assumes the court is construing the

effects of a penal "law"). "The Ex Post Facto Clause is a

limitation upon the powers of the Legislature and does not of its

own force apply to the Judicial Branch of government." Marks v.

United States, 430 U.S. 188, 191 (1977) (citation omitted).

However, this Behnezhad-based argument raises due process

considerations because 

the principle on which the [Ex Post Facto] Clause is

based-- the notion that persons have a right to fair

warning of that conduct which will give rise to criminal

penalties-- is fundamental to our concept of

constitutional liberty. As such, that right is

protected against judicial action by the Due Process

Clause of the Fifth Amendment. In Bouie v. City of

Columbia, 378 U.S. 347[, 353-54] (1964), a case

involving the cognate provision of the Fourteenth

Amendment, the Court reversed trespass convictions,

finding that they rested on an unexpected construction

of the state trespass statute by the State Supreme

Court:

[A]n unforeseeable judicial enlargement of a

criminal statute, applied retroactively,

operates precisely like an ex post facto law,

such as Art. I, § 10, of the Constitution

forbids. . . . If a state legislature is

barred by the Ex Post Facto Clause from
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passing such a law, it must follow that a

State Supreme Court is barred by the Due

Process Clause from achieving precisely the

same result by judicial construction.

Marks v. United States, 430 U.S. at 191-92 (citations omitted). 

Viewed from a due process perspective, St. John’s argument is

essentially that Schrader and this court’s later cases

unforeseeably (and incorrectly) expanded the reach of 18 U.S.C.

§ 3583(e)(3) beyond Behnezhad. St. John argues (accurately) that

all the other circuit courts of appeals that considered the issue

followed Behnezhad and not Schrader. See United States v. Stewart,

7 F.3d 1350, 1354 (8th Cir. 1993) (Lay, J., dissenting) (noting

that this court’s holding in Schrader is contrary to that of all

other circuits that have passed upon the issue and urging

submission to court en banc for reconsideration); United States v.

Krabbenhoft, 998 F.2d 591, 593 n.2 (8th Cir. 1993) (noting

inconsistency between Schrader and the other circuits). However,

this argument overlooks the fact that this court is not bound by

the prior decisions of the other circuit courts of appeals. This

circuit has consistently and repeatedly held that revocation

sentences imposed under 18 U.S.C. § 3583(e)(3) may include both

imprisonment and supervised release, as long as the aggregate of

the two terms is less or equal to the original term of supervised

release. See, e.g., United States v. Stewart, 7 F.3d at 1352

(stressing Schrader relied entirely on language of § 3583(e)(3) and

not on relationship between § 3583(e) options or sentencing

guidelines); United States v. Krabbenhoft, 998 F.2d at 594 ("term

of supervised release" as used in § 3583(e) means the term of

supervised release as originally imposed by the district court at

sentencing); cf. United States v. Hartman, 57 F.3d 670, 671 & n.2

(8th Cir. 1995) (per curiam) (rejecting argument that recent

enactment of 18 U.S.C. § 3583(h) which expressly allows district

courts to impose revocation sentence consisting of both

imprisonment and supervised release indicates this court
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misinterpreted 18 U.S.C. § 3583(e) and instead interpreting new

legislation as confirmation of this court’s interpretation).

Schrader simply does not represent a judicial expansion, much less

an unforeseeable or unexpected judicial expansion, of a criminal

statute, if applied retroactively, which would operate precisely

like an ex post facto law and thus violate due process. 

We next address St. John’s ex post facto argument based on the

difference between the prior law and the new law. This analysis is

necessarily theoretical. "[A defendant] is not barred from

challenging a change in the penal code on ex post facto grounds

simply because the sentence [the defendant] received under the new

law was not more onerous than that which [the defendant] might have

received under the old." Dobbert v. Florida, 432 U.S. at 300.

"[T]he ex post facto clause looks to the standard of punishment

prescribed by a statute, rather than to the sentence actually

imposed." Lindsey v. Washington, 301 U.S. 397, 401 (1937). 

Under the prior law, the district court could revoke

supervised release and send the defendant to prison for a period

equal to all or part of the maximum term of supervised release

authorized for the original offense, without allowing any credit

for the time spent on supervised release. 18 U.S.C. § 3583(e)(3).

In this circuit, under the prior law, the district court could

impose, in addition to the term of imprisonment (as limited by the

statute), a new term of supervised release, so long as the

aggregate of the two terms is less than or equal to the original

term of supervised release. United States v. Krabbenhoft, 998 F.2d

at 594 (interpreting "term of supervised release" as used in

§ 3483(a), (b), and (e) to refer to term of supervised release

originally imposed by district court at sentencing); United States

v. Schrader, 973 F.2d at 624-25. The new law expressly authorizes

the district court to revoke supervised release and impose both a

term of imprisonment and a term of supervised release. 18 U.S.C.

§ 3583(h). However, the district court can impose a new term of
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supervised release only if the term of imprisonment is less than

the maximum term of imprisonment authorized under § 3583(e)(3), and

the new term of supervised release may not exceed the term of

supervised release authorized 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. Id. 

Determining whether the new law increases the penalty

authorized under the prior law is complicated by several factors.

First, the maximum authorized terms of supervised release under

§ 3583(b) do not exactly match the maximum authorized terms of

imprisonment for revocation of supervised release under

§ 3583(e)(3). For example, for a Class A felony the maximum

authorized term of supervised release is 5 years, the same as the

maximum authorized term of imprisonment for revocation of

supervised release. 18 U.S.C. § 3583(b)(1), (e)(3). In

comparison, the maximum authorized term of supervised release for

a Class B felony is 5 years, id. § 3583(b)(1); however, the maximum

authorized term of imprisonment for revocation of supervised

release for a Class B felony is 3 years, id. § 3583(e)(3).

Similarly, the maximum authorized term of supervised release for a

Class C felony is 3 years, id. § 3583(b)(2), but the maximum

authorized term of imprisonment for revocation of supervised

release for a Class C felony is 2 years, id. § 3583(e)(3). 

Second, unlike the prior law, the new law authorizes the

district court to impose a new term of supervised release only when

the defendant is required to serve a term of imprisonment that is

less than the maximum term of imprisonment authorized under

§ 3583(e)(3). Id. § 3583(h). Thus, under the new law, if the

district court revokes supervised release and imposes the maximum

term of imprisonment authorized, the district court cannot impose

a new term of supervised release. 
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Third, this circuit has capped the maximum period of time that

a defendant’s freedom can be restrained, upon revocation of

supervised release, to the term of supervised release imposed in

the original sentence. United States v. Stewart, 7 F.3d at 1352-53

(the aggregate of term of imprisonment and new term of supervised

release cannot exceed term of supervised release imposed in the

original sentence). The new law provides that the new term of

supervised release "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." 18 U.S.C.

§ 3583(h). We acknowledge that the meaning of the phrase "the term

of supervised release authorized by statute for the offense that

resulted in the original term of supervised release" in this

subsection is not free from doubt. The phrase could refer to the

maximum authorized term of supervised release, id. § 3583(b). See

United States v. Beals, 87 F.3d 854, 857 (7th Cir. 1996)

(interpreting both § 3583(e)(3) and § 3583(h) to refer to the

maximum term of supervised release authorized for original

offense). However, we will construe the phrase to have the same

meaning in the prior law and the new law, that is, to refer to the

term of supervised release in the original sentence rather than the

maximum authorized term of supervised release. United States v.

Krabbenhoft, 998 F.2d at 594, citing Kifer v. Liberty Mutual

Insurance Co., 777 F.2d 1325, 1333 n.9 (8th Cir. 1985) (when same

word or phrase is used in same section of an act more than once,

and its meaning is clear as used in one place, it will be construed

to have the same meaning in the next place). 

Finally, the express availability of a new term of supervised

release under the new law is the key difference between the prior

law and the new law. However, we believe that the new law and our

interpretation of the prior law have the same effect. As noted

above, this circuit had consistently and repeatedly held that

revocation sentences imposed under 18 U.S.C. § 3583(e)(3) could
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include both imprisonment and supervised release, as long as the

aggregate of the two terms is less or equal to the original term of

supervised release. See, e.g., United States v. Stewart, 7 F.3d at

1352. That difference distinguishes cases in our circuit from

cases in those circuits which had interpreted the prior law to

preclude a new term of supervised release upon revocation of

supervised release. For example, in United States v. Beals, 87

F.3d at 857-58, the Seventh Circuit held that the new law

disadvantages a defendant in violation of the ex post facto clause.

The Seventh Circuit was one of the circuit courts of appeals that

had interpreted the prior law to preclude a new term of supervised

release upon revocation of supervised release. See United States

v. McGee, 981 F.2d 271, 274 (1992). In Beals the Seventh Circuit

noted that because a defendant receives no credit for time

previously served on postrelease supervision, a defendant is

potentially subject to greater punishment under the new law than

the prior law. 87 F.3d at 857-58. This is because under the prior

law, as interpreted in the Seventh Circuit, "a defendant could

serve only one term of supervised release and thus only once ‘lose’

credit for time served prior to the revocation," but under the new

law "a defendant can serve multiple terms of supervised release and

thus potentially ‘lose’ multiple periods of time after the initial

revocation." Id. at 857 (analysis also interprets § 3583(h) to

permit new term of supervised release to be maximum period of

supervised release authorized by statute for the offense, less any

term of imprisonment imposed upon revocation). But see United

States v. Brady, 88 F.3d 225, 228-29 (3d Cir. 1996) (holding new

law does not change amount of time defendant’s liberty can be

restrained for violating supervised release; analysis interprets

prior law and new law to limit that time to maximum term of

supervised release authorized for given offense, without any credit

for time spent on supervised release). 

We conclude that a defendant is not potentially subject to an

increased penalty under § 3583(h) because, given our interpretation
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of § 3583(e)(3) in Schrader and subsequent cases like Krabbenhoft,

the maximum period of time that a defendant’s freedom can be

restrained upon revocation of supervised release under the new law

is either the same as, or possibly less than, under the prior law.

Because application of the new law does not result in an increased

penalty, there is no ex post facto violation. That the potential

penalty for revocation of supervised release under the new law is

the same, or possibly less, under the prior law can best be

illustrated by example. In the case of a Class A felony, for which

the maximum authorized term of supervised release is the same as

the maximum term of imprisonment authorized under § 3583(e)(3), the

availability of a new term of supervised release under the new law

does not increase the time the defendant is subject to government

supervision, either in prison or on supervised release. See

United States v. Brady, 88 F.3d 225, 228-29 (3d Cir. 1996)

(possibility of 5-year loss of freedom both before and after

enactment of § 3583(h) for defendant convicted of possession with

intent to distribute, a Class A felony; noting that only difference

is that under new law defendant’s liberty can be restrained by

"mix" of imprisonment and supervised release (assuming term of

imprisonment is less than 5 years)). In the case of a Class C

felony, for which the maximum authorized term of supervised release

is 3 years, under the prior law as interpreted in this circuit, a

defendant could be sentenced, upon revocation of supervised

release, to a term of imprisonment of 2 years (the maximum term of

imprisonment authorized under § 3583(e)(3)) to be followed by a

term of supervised release of 1 year. Under the new law, however,

that defendant could not be sentenced to a term of supervised

release, and thus would be subject to less punishment than under

the prior law, because the term of imprisonment was not less than

the maximum term of imprisonment authorized under § 3583(e)(3). 

The availability of a new term of supervised release under the

prior law in this circuit (but not in other circuits) explains why

the Seventh Circuit reached the contrary conclusion in the
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hypothetical in Beal, 87 F.3d at 858. In the Beal hypothetical, A

is convicted of a Class C felony and sentenced to a term of

imprisonment followed by 3 years of supervised release (the maximum

authorized under § 3583(b)(2)). A serves the prison time and is

released under supervision. One year later A violates the terms of

supervised release. Under the prior law in the Seventh Circuit,

because an additional term of supervised release was not permitted

upon revocation of supervised release, the maximum penalty the

district court could impose was 2 years imprisonment (under

§ 3583(e)(3)). At the end of 2 years, the government’s supervision

of A was extinguished. However, under the new law, if the district

court sentences A to 2 years on a combination of imprisonment and

supervised release (1 year imprisonment and 1 year supervised

release), then if A violates the terms of that second supervised

release 6 months later, the district court could sentence A to up

to 1 year in prison (2-year maximum less 1 year already served).

The Seventh Circuit concluded that under the new law A would be

subject to a total of 2 1/2 years punishment from the time of

initial revocation (1 year in prison, 6 months on supervised

release, then 1 more year in prison), or 6 months longer than that

allowed under the prior law (2 years in prison, no new term of

supervised release). In this circuit, however, under the prior law

the maximum penalty the district court could impose was 3 years

(the term of supervised release originally imposed), not 2 years;

the maximum term of imprisonment would be the same (limited to 2

years), but the district court could impose an additional term of

supervised release of up to 1 year. 

In sum, because the availability of supervised release under

18 U.S.C. § 3583(h) does not increase the penalty authorized under

18 U.S.C. § 3583(e)(3), there is no ex post facto violation.

Accordingly, we affirm the judgment of the district court.
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A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.