United States v. Jett On petition for rehearing

70 F. App'x 717

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 31, 2003
• Docket: 02-4827, 02-4828
• Status: Unpublished

Opinion

OPINION

PER CURIAM.

Allen Jett and Antoine DePaul Marshall filed a petition for panel rehearing and rehearing en banc from the decision of this Court on May 20, 2003, affirming the sentences imposed by the district court. See United States v. Jett, 63 Fed. Appx. 155 (4th Cir.2003). In the petition for rehearing, Marshall asserts that we erred in applying a plain error standard of review to his claim that the district court erred by imposing a five-year term of supervised release when it resentenced him because no more than a three-year term was authorized under 18 U.S.C. § 3559(a)(3). Upon a review of the record, we find that Marshall is correct as to his argument with respect to plain error, for he did raise this issue at resentencing and on appeal, and we should have applied a de novo standard of review. See United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir.1989). We therefore rehear the case and issue this opinion.

Upon de novo review on rehearing, we nevertheless affirm the holding of the district court based on our holding in United States v. Pratt, 239 F.3d 640, 647 (4th Cir.2001) (holding that the statutory cap in § 3583 “does not apply to statutes, such as § 841(b)(1)(C), whose own mandatory minimum periods of supervised release are the same as, or exceed, the maximum periods provided by § 3583”). Marshall suggests that we overrule Pratt; however, a panel of this court cannot overrule a prior panel. Mentavlos v. Anderson, 249 F.3d 301, 312 n. 4 (4th Cir.2001).

With respect to the other issues raised in the petition for rehearing, we are of opinion these claims are meritless. We therefore affirm the sentences imposed by the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid in the decisional process.

There has been no request for a poll of the Court on the petition for rehearing en banc; therefore, the petition for rehearing en banc is denied.

AFFIRMED.