UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 99-6939

JIMMIE LEE SWANN, Defendant-Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (CR-89-140, CA-99-47-1)

Submitted: October 20, 1999

Decided: November 9, 1999

Before MURNAGHAN, HAMILTON, and LUTTIG, Circuit Judges.

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Affirmed in part and vacated and reversed in part by unpublished per curiam opinion.

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COUNSEL

Jimmie Lee Swann, Appellant Pro Se. Brian Lee Whisler, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

_________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

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OPINION

PER CURIAM:

Jimmie Swann seeks to appeal the district court's order denying relief on his motion filed under

(West Supp. 1999). Swann's motion challenged the propriety of a district court order extending the period of his supervised release, and a subsequent order revoking his supervised release and ordering Swann incarcer- ated for a period of one year. Swann asserts that the district court lacked authority to extend the term of his supervised release based on his use of drugs in violation of the conditions of his supervised release. We agree that Swann's possession of a controlled substance during his supervised release required revocation of his supervised release and incarceration under

(g) (West Supp. 1999). See United States v. Clark,

(4th Cir. 1994).

We disagree, however, with Swann's position that under the pre- 1994 version of § 3583(g), the court should have imposed a period of incarceration not exceeding eight months for his second violation of the conditions of his supervised release, which also involved Swann's abuse of drugs. Because the former version of § 3583(g) did not address the maximum term of incarceration for a subsection (g) violation, even before 1994 district courts were authorized to look to the maximum term allowed under

(e) (West Supp. 1999), when setting the term of incarceration for a subsection (g) violation of supervised release. See United States v. Davis,

, 640 n.4 (4th Cir. 1995); United States v. Rockwell,

(10th Cir. 1993) (citing cases). Subsection (e) authorized incarceration of up to two years for a Class D felon such as Swann. See § 3583(e). Moreover, the pre-1994 version of § 3583(e) also per- mitted two additional years incarceration because that was the origi- nal term of Swann's supervised release. See United States v. Barrow,

(E.D. Va. 1996). Hence, the district court prop- erly found that subsection (e) authorized the one-year term of incar-

2 ceration imposed on Swann, and he was not prejudiced by the application of the current version of subsection (e).

Accordingly, we grant a certificate of appealability and reverse and vacate that portion of the district court's order upholding the exten- sion of the term of Swann's supervised release. In all other respects, the order of the district court is affirmed. We dispense with oral argu- ment because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the deci- sional process.

AFFIRMED IN PART, REVERSED AND VACATED IN PART

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