United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 27, 2006
Charles R. Fulbruge III
Clerk
No. 05-40831
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISRAEL MAGANA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:99-CR-392-ALL
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Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Israel Magana appeals the sentence imposed by the
district court following the revocation of his term of supervised
release. Magana argues that his sentence exceeds the statutory
maximum because it includes a one-year term of supervised release
in addition to a two-year term of imprisonment.
A district court may revoke a term of supervised release and
require a defendant to return to prison. 18 U.S.C. § 3583(e)(3).
Where the offense that resulted in the term of supervised release
is a class C felony, as was Magana’s 1999 carjacking offense, the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-40831
-2-
defendant may not be required to serve more than two years in
prison. Id.; see 18 U.S.C. § 3559(a)(3).
Under the provisions of 18 U.S.C. § 3583(h), as that section
read at the time of Magana’s carjacking offense, the district
court was also permitted to impose a term of supervised release
to be served after imprisonment, but only when the term of
imprisonment was less than the maximum term of imprisonment
authorized under § 3583(e)(3). Section 3583(h) has since been
amended; however, the amendment will not be applied retroactively
absent a clear statement that Congress so intended. See Johnson
v. United States, 529 U.S. 694, 702-03 (2000). The Government,
citing ex post facto concerns, properly concedes that § 3583(h)
must be applied as it read when Magana committed the underlying
carjacking offense.
Because Magana was sentenced to the maximum term of
imprisonment under 18 U.S.C. § 3583(e)(3), the district court was
prohibited under the applicable version of § 3583(h) from
imposing a subsequent term of supervised release. Accordingly,
Magana’s sentence is vacated and the case is remanded to the
district court for resentencing.
VACATED AND REMANDED FOR RESENTENCING.