United States v. Morris

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAR 18 1999 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 98-5165 v. (N. District of Oklahoma) (D.C. No. 92-CR-60-B) MICHAEL JEFFREY MORRIS,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before TACHA, McKAY, and MURPHY, 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). This court,

therefore, honors the parties’ requests and orders the case submitted without oral

argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel.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. Michael J. Morris appeals from the district court’s imposition of a six-

month term of incarceration followed by eighteen months of supervised release

following the revocation of Morris’s previous term of supervised release. Morris

contends that because his previous term of supervised release was imposed in

violation of the Ex Post Facto Clause, he cannot be punished for violating the

terms of the release. This court exercises jurisdiction pursuant to 28 U.S.C. §

1291 and affirms.

This court rejected a claim that is, in all material respects, identical to

Morris’ claim in United States v. Wash, No. 95-4156, 1996 WL 536563, at *1-*2

(10 th Cir. Sept. 23, 1996) (unpublished disposition). Morris notes that because

Wash is an unpublished disposition, it is not binding on this panel. See 10 th Cir.

R. 36.3(A). Even though Wash is not binding, however, we find it persuasive and

adopt its reasoning to resolve Morris’ appeal.

Although Wash fully resolves Morris’ claim of error, this court notes

parenthetically that each circuit that had interpreted 18 U.S.C. § 3583(e) to permit

imposition of both a term of imprisonment and an additional term of supervised

release has since held that the application of 18 U.S.C. § 3583(h) to crimes

committed before its passage does not violate the Ex Post Facto Clause. See

United States v. St. John, 92 F.3d 761, 767 (8 th Cir. 1996); United States v.

Sandoval, No. 95-1326, 1995 WL 656488, at *1 (1 st Cir. Nov. 7, 1995)

-2- (unpublished disposition); see also United States v. Lominac, 144 F.3d 308, 314

n.7 (4 th Cir. 1998) (distinguishing Wash, St. John, and Sandoval on that ground

that “[i]n circuits that had previously interpreted § 3583(e) to authorize both

imprisonment and supervised release, § 3583(h) did not change prior law and

hence could not disadvantage defendants in violation of the Ex Post Facto

Clause”).

The judgment of the United States District Court for the Northern District

of Oklahoma is hereby AFFIRMED.

ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge

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