The HONORABLE JAMES M. ROSENBAUM, United States District *

Judge for the District of Minnesota, sitting by

designation.

 The Honorable Charles A. Shaw, United States District Judge 1

for the Eastern District of Missouri.

 

No. 96-1288

 

United States of America, *

*

 Appellee, *

* Appeal from the United States

 v. * District Court for the Eastern

 * District of Missouri.

James Edward Evans, *

*

 Appellant. *

 

Submitted: June 11, 1996

Filed: July 2, 1996

 

Before MORRIS SHEPPARD ARNOLD and FLOYD R. GIBSON, Circuit Judges, and

ROSENBAUM, District Judge. *

 

MORRIS SHEPPARD ARNOLD, Circuit Judge.

James Edward Evans appeals the district court's order revoking his

supervised release and sentencing him to a term of imprisonment. We affirm

the judgment of the district court .

1

I.

In 1992, Evans was convicted in the Western District of Texas of

possession of marijuana with the intent to distribute it, see 21 U.S.C.

§ 841(a)(1), and was sentenced to 51 months in prison
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followed by five years of supervised release. Because the maximum

supervised release term for this offense is three years, see 18 U.S.C.

§ 3583(b)(2), see also 18 U.S.C. § 3559(a), his sentence was illegal. 

In 1994, jurisdiction over Evans's supervised release was transferred

from the Western District of Texas to the Eastern District of Missouri.

In 1995, Evans violated the conditions of his supervised release, and the

district court sentenced him to seven months in prison followed by 24

months of supervised release. Later that year, Evans again violated the

conditions of his supervised release, so the district court revoked it and

sentenced him to 13 months in prison. It is this third sentence that Evans

appeals. 

II.

A.

Evans first argues that the district court improperly relied on his

illegal original sentence in determining his sentence. He asks us to

remand the case to the district court with instructions to resentence him

without considering the illegal sentence. Evans relies upon Williams v.

United States, 503 U.S. 193, 201-03 (1992), but we do not think that that

case helps him. In Williams, the Supreme Court held that it was reversible

error for a district court to base a sentence solely upon considerations

not approved by the sentencing guidelines. Id. at 201-02. 

Williams also indicated, however, that where the district court

weighed both proper and improper considerations in determining the

sentence, remand is not necessary if it is clear that the district court

would have imposed the same sentence in the absence of the unauthorized

consideration. Id. at 202-03. We have carefully reviewed the record and

find no evidence that the district court considered Evans's illegal

sentence at all in
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arriving at his sentence. In fact, when he tried to argue that his

original sentence was illegal, the court told him that the issue was

irrelevant to the revocation proceeding. 

B.

Evans next contends that, when he first violated his release terms

in 1995, the district court should not have sentenced him to a second term

of supervised release. We have always permitted such "stacking" of

supervised release terms, see, e.g., United States v. Schrader, 973 F.3d

623, 624-25 (8th Cir. 1992). The Fifth Circuit, however, prohibited

"stacking" at the time that Evans was originally convicted, see, e.g.,

United States v. Holmes, 954 F.2d 270, 272 (5th Cir. 1992), and he asserts

that this rule should have applied to him because he was convicted in

Texas. He reasons that the district court lacked authority to revoke his

release because it was illegally imposed in the first place. 

Evans is essentially trying to challenge his second sentence, which

the district court imposed in 1995. Because he never appealed from that

earlier proceeding, we believe that he waived the issue of any legal

infirmity in that sentence. See, e.g., United States v. Kress, 58 F.3d

370, 373 (8th Cir. 1995). Even if we assume that he has not waived the

issue, and further assume that he is correct that the law of the Fifth

Circuit as it stood when he was sentenced the second time should have

applied to his case (a proposition that we seriously doubt), however, his

argument still fails. 

Congress amended the relevant statute, see 18 U.S.C. § 3583(h), in

1994 to make it clear that "stacking" was permissible. See, e.g., United

States v. Hartman, 57 F.3d 670, 671 (8th Cir. 1995) (per curiam). Thus the

fact that the Fifth Circuit prohibited "stacking" at the time that Evans

was originally convicted is beside the point. The amended statute applied

to his
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case in 1995 because the district court did not increase the sentence for

his original crime but merely punished him for violating his supervised

release, an event that occurred after the amendment became effective. See,

e.g., United States v. Cooper, 35 F.3d 1248, 1251-52, 1252-53 n.7 (8th Cir.

1994), aff'd, 63 F.3d 762 (8th Cir. 1995) (per curiam), cert. denied, 116

S. Ct. 1548 (1996). 

C.

Evans argues finally that the district court lacked the power to

revoke his supervised release because his transfer from the Western

District of Texas to the Eastern District of Missouri was illegal. He

maintains that the terms and conditions of his release were modified when

he was transfered to a jurisdiction that permitted "stacking," and that his

transfer was therefore covered by Fed. R. Crim. P. 32.1(b), which requires

a "hearing and assistance of counsel ... before the terms or conditions of

... supervised release can be modified." This argument is without merit.

In the first place, although Evans now says that he had no notice of

his transfer, the record shows that he asked for it. In any event, we

agree with the Ninth Circuit that the "location of [supervised release]

jurisdiction is not ... a term or condition" within the meaning of Fed. R.

Crim. P. 32.1(b). United States v. Ohler, 22 F.3d 857, 858 (9th Cir.

1992). The fact that the Fifth Circuit (at one time) prohibited "stacking"

terms of supervised release, and the Eighth Circuit permitted it, is

therefore irrelevant. The change in venue did not affect the terms and

conditions of Evans's release (those terms were clearly set out by the

Western District of Texas in a document called "Standard Conditions of

Supervision"); rather, it affected what happened if he violated them. 
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III.

For the foregoing reasons, we affirm the judgment of the district

court.

A true copy.

Attest:

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