November 7, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1326
UNITED STATES,
Appellee,
v.
DON SANDOVAL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Selya, Cyr and Boudin,
Circuit Judges.
Don Sandoval on brief pro se.
Sheldon Whitehouse, United States Attorney, Margaret E. Curran
and Gerard B. Sullivan, Assistant United States Attorneys, on brief
for appellee.
Per Curiam. Defendant Don Sandoval appeals from
the sentence the district court imposed on him following the
revocation of a term of supervised release. The court
sentenced defendant to both a term of imprisonment and a term
of supervised release.
Defendant first argues that the supervised release
revocation provision, 18 U.S.C. 3583(e)(3), does not permit
the imposition of a term of supervised release and a term of
imprisonment. We rejected this precise argument in United
States v. O'Neil, 11 F.3d 292 (1st Cir. 1993), and re-
affirmed our position in United States v. LaPlante, 28 F.3d 1
(1st Cir. 1994) (per curiam), cert. denied, 115 S.Ct. 910
(1995). Defendant has not presented any persuasive reasons
why we should change this recent statement of the law.
Defendant's second argument on appeal is that the
district court violated the prohibition of the ex post facto
clause by applying 3583(h) to him. This section was added
in 1994. It specifically provides that when revoking a term
of supervised release under subsection (e)(3), a district
court may include a requirement of supervised release after
imprisonment.
To fall within the ex post facto prohibition, the
new law "must disadvantage the offender affected by it."
Miller v. Florida, 482 U.S. 423, 430 (1987) (internal
quotations and citation omitted). Assuming the district
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court used subsection (h), defendant was not disadvantaged.
In O'Neil, we already had construed subsection (e)(3) to
permit what subsection (h) now grants expressly. Cf. United
States v. Hartman, 57 F.3d 670, 671 (8th Cir. 1995) (per
curiam) (the legislative history of subsection (h) shows that
subsection(e)(3) permits both incarceration and supervised
release).
Based on the foregoing, the judgment of the
district court is affirmed.
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