### The HONORABLE JAMES M. ROSENBAUM, United States District * 

### Judge for the District of Mi nnesota, 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, an d ROSENBAUM, District Judge.

*
MORRIS SHEPPARD ARNOLD, Circuit Judge.

James Edward Evans appeals the district court's order revoking hi s supervised release and sentencing him to a term of imprisonment. We affir m the judgment of the district court

. 1

I. In 199 2, Evans was convicted in the Western District of Texas o f 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 maximu m super vised 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 trans ferred fromthe Western District of Texas to the Eastern District of Missouri

. In 1995, Evans violat ed the conditions of his supervised release, and the district c ourt sentenced him to seven months in prison followed by 2 4 months of supervised release. Later that year, Evans again violated the conditions of his supervised release, so the dis trict court revoked it and sentenced him to 13 months in prison. It is this third sentence that Evan s appeals.

II. A. Evans fir st argues that the district court improperly relied on his illegal or iginal sentence in determining his sentence. He asks us t o remand the case to th e 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 reversibl e
error for a district court to base a sentence solely upon considerations not approved by the sentencing guidelines. Id. at 201-02.

Wil liams also indicated, however, that where the district cour t weighed both proper and improper considerations in determining th e sentence, remand is not necessary if it is clear that the district court would have imposed the same sentence in the absence of the unauthorize d consideration. Id. a t 202-03. We have carefully reviewed the record and find n o evidence that the district court considered Evans's illega l sentence at all in

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arriving at his sentence. In fact, when he tried to argue that hi s orig inal sentence was illegal, the court told him that the issue wa s irrelevant to the revocation proceeding.

B. Evans ne xt contends that, when he first violated his release term s in 1995, the district court should not have sent enced him to a second term of supervised release. We have always permitted such "stacking" o f supervised release terms, see , e.g. , United States v. Schrader , 973 F.3d 623, 624-25 (8th Cir. 1992). The Fifth Circuit, however, prohibite d "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 tha t this rule should have applied to him because he was convicted i n Texas. He reasons th at 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 earl ier proceeding, we believe that he waived the issue of any lega l infirmity in that sentence. See , e.g. , United States v. Kress , 58 F.3 d 370 , 373 (8th Cir. 1995). Even if we assume that he has not waived th e issue, a nd further assume that he is correct that the law of the Fift h Cir cuit as it stood when he was sentenced the second time should hav e 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), i n 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 th e fact that the Fifth Circuit prohibited "stacking" at the time that Evans was originally convicted is beside the point. T he 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 supervise d 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. Ev ans argues finally that the district court lacked the power t o revoke his supervised release because his transfer from the Wester n District of Texas to the Eastern District of Missouri was illegal. H e maintains that the te rms and conditions of his release were modified when he was transfered to a jurisdiction that permitted "stacking," and that hi s 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 releas e can be modified." This argument is without merit.

In the first place, although Evans n ow says that he had no notice of his transfer, the record shows that he asked for it. In any event, w e agr ee with the Ninth Circuit that the "location of [supervised release ] jurisdiction is not ... a term or condition" wit hin 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 " term s of supervised release, and the Eighth Circuit permitted it, i s therefore irrelevant. The change in venue did not affect the terms an d condi tions of Evans's release (those terms were clearly set out by th e Western District of Texas in a document called "Standard Conditions o f Supervision"); rather, it affected what happened if he violated them.

### -5- III. For t he foregoing reasons, we affirm the judgment of the distric t court.

A true copy.

Attest:

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