[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR TH E ELEV ENTH C IRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEV ENT H CIR CUIT
September 19, 2003
No. 02-16815 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 97-00409-CR-KMM
UNI TED STA TES OF A MER ICA,
Plaintiff- Appe llee,
versus
BRIA N PL A,
Defen dant-A ppellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 19, 2003)
Before TJOF LAT, BIR CH and G ODBO LD, Circuit Judges.
PER CURIAM:
This case arises from a motion to withdraw as appointed appeals counsel
pursuant to Ande rs v. Calif ornia, 386 U.S. 738 (1967). In 1997 the appellant pled
guilty to one count of importing cocaine into the United States in violation of 21
U.S.C. §952(a). He was ordered to serve 38 months in prison followed by three
years of supervised release. He began serving his three year supervised release
term in November of 2000. Between November of 2000 and August of 2002, the
appellant repeatedly violated the terms of supervised release by testing positive for
marijuana. Subsequent to the third positive testing he failed to report for further
urinalysis and w as arrested in Octo ber of 2 002 on bond v iolations. T he cour t,
pursuant to 18 U.S.C. §3583(e)(3), (g) and (h) revoked appellant’s supervised
release and ordered that he be imprisoned for nine months followed by 51 months
of supervised release. Appellant’s counsel timely objected to the length of the
superv ised releas e and no w app eals.
“This court reviews de novo the legality of a sentence, including a sentence
imposed pursuant to revocation of a term of supervised release.” U.S. v. Aimufa,
122 F.3d 1376, 13 78 (11th C ir. 1997). In d etermining w hether appo inted counse l’s
motion to withd raw sh ould be granted this cour t review s the full re cord to
determin e wheth er the case is who lly frivolo us. Anders, 386 U .S. at 744 . If it
finds “any of the legal points arguable on their merits . . . it must, prior to decision,
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afford the indigent the assistance of counsel to argue the appeal.” Id.
In U.S. v. Gresham this court found that 18 U.S .C. §3583(e)(3) authorizes a
court revoking a person’s supervised release to impose both a new prison term and
a new term of supervised release. 18 U.S.C. §3583(e)(3) caps the length of
supervised release pending on the class of felony originally committed and any
prison term served after the initial supervised release revocation is subtracted from
this cap. 325 F.3d 1262, 1267 (11th Cir. 2003). This court further held that
“[i]mplicit in both the [U.S. v. Williams, 2 F.3d 36 3 (11th C ir. 1993)] pan el’s
analysis and the Supreme Court’s analysis in [Johnson v. U.S., 529 U.S. 694
(2000 )] is the fact th at the sup ervised r elease term starts anew once it is re voked .
Neither court contemplated a defendant receiving credit for prior time served.” Id.
Appellant’s appeal addresses the issue of whether 18 U.S.C. §3583(h)
requires the court to give credit for time previously served o n supervised release
when it revokes the initial term of supervised release and orders an additional
prison te rm follo wed b y a new term of s upervis ed release . Subse ction (h) states:
Supervised release following revocation -- When a term of supervised
release is revoked and the defendant is required to serve a term of
imprisonment, the court may include a requirement that the defendant
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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.
The above language differs from subsection (e)(3) in that it is silent on the
issue of whether credit ought to be g iven for time previously served on p ost-release
supervision. The only credit that subsection (h) clearly enumerates is time served
in prison post revocation of supervised release. The Supreme Court has held that
“[w]here Congress explicitly enumerates certain exceptions to a general
prohibition, additional exceptions are not to be implied, in the absence of evidence
of a contrary legislative intent.” U.S. v . Smith, 499 U.S. 160, 167 (1991) (quoting
Andrus v. Glover Constr. Co., 466 U .S. 608 , 616-1 7 (198 0). Thu s, by exp licitly
stating that credit shall only be given for time served in prison post revocation,
congressional intent was to foreclose any o ther type of credit. This silence is also
consisten t with su bsection (e)(3), w hich also foreclos es credit fo r time pre viously
served o n super vised release. This decision is consiste nt with o ur sister cir cuits.
U.S. v. Pettus, 303 F .3d 480 , 484-5 (2d Cir . 2002) ; U.S. v. Cade, 236 F.3d 463,
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467 (9th Cir. 2000).
Moreover, the appellant contends that the original sentence of three year
supervised release ordered by the court binds the court on revocation to the
maximum of three years that m ay be divided between add itional supervised release
and/or prison term. 18 U.S.C § 3583 (g) states that the court shall revoke the term
of supe rvised re lease for e numer ated instan ces includ ing failing to comp ly with
drug testing and repeatedly testing positive for illegal controlled substance. Upon
revocation the court will “require the defendant to serve a term of imprisonment
not to exceed the maximum term of imprisonment authorized under subsection (e)
(3).” Subsection (e)(3) authorizes the court to impose additional prison term
and/or supervised release not to exceed “5 years in prison if the offense that
resulted in the term of supervised release is a class A felony,” the class of felony of
which the appe llant had b een con victed. T hese tw o subse ctions rea d in
conjunction with subsection (h) authorize the court to divide the 5-year maximum
sentence between prison term and supervised release as the court sees fit. The
language of §3583(e)(3), (g) and (h) makes clear that the length of additional
supervised release and prison term upon revocation is not bound by the original
term of s upervis ed release but by th e class of f elony of which the appe llant is
convicted. Thus “the aggregate of pre-revocation and post-revocation supervised
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release terms may exceed the maximum length of supervised release that § 3583(b)
dictates should attach to the underlying offense.” Gresham, 325 F .2d at 12 68.
Counsel’s Motion to withdraw is GRANTED, and the revocation and
sentence are AF FIRM ED.
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