F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 7 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4085
KIMBERLY ANN TYROLT, (D.C. No. 00-CR-37-B)
(D. Utah)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before HENRY, BALDOCK, and LUCERO, Circuit Judges.**
In November 1996, Defendant pled guilty to false representation of a social
security number in violation of 42 U.S.C. § 408(a)(7)(B). The district court sentenced
Defendant to eighteen months imprisonment followed by thirty-six months of supervised
release. In April 2000, Defendant admitted six violations of the terms and conditions of
his supervised release. The district court revoked Defendant’s current term of supervised
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(A)(2). The case is therefore
ordered submitted without oral argument.
release and sentenced her to eighteen months imprisonment followed by eighteen months
supervised release. Defendant appeals her sentence. We exercise jurisdiction pursuant to
28 U.S.C. § 1291 and 18 U.S.C. § 3742, and affirm.
Under 18 U.S.C. § 3583(e)(3), upon revocation of supervised release, the
maximum term of imprisonment is two years where the original offense was a Class D
felony. Where the original offense was a Class E felony, however, the maximum term of
imprisonment upon revocation of supervised release is one year. The district court
determined Defendant’s original § 408 offense was a Class D felony and sentenced
Defendant accordingly. 18 U.S.C. § 3559(a)(4) classifies a Class D felony as a felony
with a maximum term of imprisonment of “less than ten years but five or more years.” A
Class E felony, on the other hand, carries a maximum term of “less than five years but
more than one year.” Id. § 3559(a)(5).1 Defendant’s original offense under 42 U.S.C.
§ 408(a)(7)(B) carried a statutory maximum term of imprisonment of “not more than five
years.”
Defendant argues the original § 408 offense was a Class E felony. Specifically,
1
18 U.S.C. § 3559(a) provides in relevant part:
“[a]n offense that is not specifically classified by a letter grade in the section
defining it, is classified if the maximum term of imprisonment authorized is–
(4) less than ten years but five or more years, as a Class D felony;
(5) less than five years but more than one year, as a Class E felony.”
2
Defendant argues the phrase “not more than five years” means four years and 364 days.
Contrary to Defendant’s argument, the plain language of § 408(a)(7)(B), “not more than
five years,” clearly includes a maximum term of imprisonment of exactly five years.
Therefore, Defendant’s § 408 conviction is a Class D felony. Defendant concedes that if
we determine the original offense is a Class D felony, the district court properly sentenced
Defendant under 18 U.S.C. § 3583(e)(3) and (h). We agree. Accordingly, Defendant’s
sentence is
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
3