[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
August 30, 2005
No. 05-10379 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-06025-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NEESHAN PETERS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 30, 2005)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Neeshan Peters appeals his sentence of 24 months’ imprisonment and 12
months’ supervised release, imposed after he violated the terms of his supervised
release. We vacate and remand for resentencing.
Peters argues the sentence violates the ex post facto clause of the U.S.
Constitution. He maintains the district court was required to apply the version of
18 U.S.C. § 3583(h) in effect at the time of his underlying criminal conduct, which
permitted a sentencing court to impose a new term of supervised released only
when the term of imprisonment imposed was less than the authorized maximum
term of imprisonment.
Because Peters objects to the district court’s application of the amended
version of § 3583 for the first time on appeal, we apply plain-error review. See
United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003). To satisfy the
plain-error standard, we must find (1) the district court committed “error,” (2) the
error was plain or obvious, and (3) the error “affected substantial rights” in that the
error was prejudicial and not harmless. United States v. Olano, 113 S. Ct. 1770,
1777–78 (1993). If these criteria are met, we may, in our discretion, correct the
plain error if it “‘seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.’” Id. at 1779 (citation omitted).
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The ex post facto clause “bars application of a law ‘that changes the
punishment, and inflicts a greater punishment, than the law annexed to the crime,
when committed.’” Johnson v. United States, 120 S. Ct. 1795, 1800 (2000)
(citation omitted). To prevail on the type of ex post facto claim raised by Peters, he
“must show both that the law he challenges operates retroactively (that it applies to
conduct completed before its enactment) and that it raises the penalty from
whatever the law provided when he acted.” Id. Finally, because postrevocation
penalties relate to the original offense, sentencing a defendant under a version of
§ 3583 amended after the original offense would constitute retroactive application
of that section. See id. at 1801.
At the time of Peters’s underlying offense, § 3583(h) provided:
(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.
18 U.S.C. § 3583(h) (2001) (emphasis added). This section was amended in 2003
by striking the emphasized language. See 18 U.S.C. § 3583 (as amended by the
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Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act
of 2003 (PROTECT Act), Pub. L. No. 108-21 § 101(1), 117 Stat. 650).
The Government concedes the district court committed error by violating the
ex post facto clause because (1) it applied the amended version of § 3583(h) where
Peters’ underlying offense was completed before the provision was amended; and
(2) the application of the amended version raised the penalty by allowing the court
to impose a term of supervised release where the maximum term of imprisonment
was imposed. The Government acknowledges this error was plain and affected
Peters’ substantial rights but argues the sentence does not “seriously affect the
fairness, integrity, or public reputation of judicial proceedings.” We disagree.
Because the district court imposed a sentence that exceeded the sentence permitted
under the applicable statute, we conclude the court’s error seriously affected the
fairness, integrity, or public reputation of judicial proceedings. Accordingly, we
vacate and remand for resentencing under the appropriate version of § 3583(h).
VACATED AND REMANDED.
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