United States v. Begay

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 25 2000

TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 98-4195 v. (D.C. No. 91-CR-156-S) (Utah) NELSON BEGAY,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.

Nelson Begay pled guilty in 1991 to two counts of abusive sexual conduct,

one count based on conduct in 1986 and one count based on conduct in 1991. He

was sentenced in 1992 to 108 months in prison on the first count and 24 months

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel.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. in prison followed by three years of supervised release on the second count, the

sentences to run concurrently. Mr. Begay began his term of supervised release in

1997. After Mr. Begay admitted violating the terms of his supervised release, he

was sentenced to nine months incarceration to be followed by 27 months of

supervised release. Mr. Begay appeals the sentence. Based on Johnson v. United

States, No. 99-5153, 2000 WL 574359 (U.S. May 15, 2000), we affirm.

On appeal, Mr. Begay contends that under the sentencing statute in effect at

the time of his offenses, 18 U.S.C. § 3358(e)(3), the court lacked authority to

impose a term of supervised release after reimprisonment. He further argues that

application to him of the 1994 amendment to that statute, id. § 3358(h), which

expressly authorized such terms of supervised release, violates the Ex Post Facto

Clause.

The Supreme Court in Johnson considered the statutes at issue here and

addressed the same arguments made by Mr. Begay. At the time Mr. Begay was

convicted and sentenced, the imposition of terms of supervised release was

governed by 18 U.S.C. § 3583(e)(3), which did “not speak directly to the question

whether a district court revoking a term of supervised release in favor of

reimprisonment may require service of a further term of supervised release

following the further incarceration.” Johnson, 200 WL 574359, at *6. The

statute was amended in 1994 by the addition of section 3583(h), which “explicitly

-2- gave district courts the power to impose another term of supervised release

following imprisonment, a power not readily apparent from the text of §

3583(e)(3).” Id. at *3.

The Court held in Johnson that section 3583(h) “applies only to cases in

which [the] initial offense occurred after the effective date of the amendment,

September 13, 1994.” Id. at *5. Because Mr. Begay’s offenses occurred before

that effective date, the amendment does not apply to him and we need not address

his ex post facto argument.

Mr. Begay also asserts that section 3583(e)(3), the statute in effect at the

time of his offenses, did not authorize imposition of a term of supervised release

following incarceration. The Court held to the contrary in Johnson, however,

stating that “in applying the law as before the enactment of subsection (h), district

courts have the authority to order terms of supervised release following

reimprisonment.” Id. at *9. The district court did not err in resentencing Mr.

Begay.

We AFFIRM the judgment of the district court.

ENTERED FOR THE COURT

Stephanie K. Seymour Chief Judge

-3-