UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50244 No. 99-50245

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

PATRICK STIEFEL,

Defendant-Appellant.

Appeals from the United States District Court for the Western District of Texas March 20, 2000 Before KING, Chief Judge, and DUHÉ and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

In these consolidated appeals, Patrick Stiefel challenges the

district court’s revocation of his supervised release and its

imposition of a 14 month term of imprisonment. Because the

revocation and the resulting sentence were not in violation of law

or plainly unreasonable, we affirm.

I.

On April 7, 1992, Patrick Stiefel was sentenced to two terms

of 57 months imprisonment, to be followed by two years of

supervised release, all to be served concurrently, for two

violations of

(a), prohibiting bank robbery. After

serving his term of imprisonment, Stiefel was released on January

18, 1996, and began his supervised release. But on May 16, 1997,

the district court revoked Stiefel’s concurrent terms of supervised release because, among other things, he failed a drug urinalysis.

The district court resentenced him to two terms of 10 months

imprisonment and 14 months supervised release, all to be served

concurrently. The order was entered nunc pro tunc on July 24,

1997. Stiefel did not appeal his resentencing.

On February 12, 1998, Stiefel began his second term of

supervised release. While serving that term, Stiefel filed on July

24, 1998, an application for writ of habeas corpus to vacate the

second term of supervised release. He alleged that under circuit

precedent the district court lacked authority pursuant to

(e)(3) to impose a term of supervised release along with a

term of imprisonment after the revocation of his initial supervised

release. Furthermore, Stiefel maintained that the 1994 amendment

to

, authorizing the imposition of supervised

release in addition to imprisonment after revocation of supervised

release, could not be applied in his case because it would violate

the Ex Post Facto Clause. On July 28, 1998, the district court

denied Stiefel’s application. Stiefel did not appeal that ruling.

On October 27, 1998, the government moved to revoke Stiefel’s

second term of supervised release, alleging that Stiefel tested

positive for cocaine in violation of his release conditions.

Stiefel contested that motion, filing a “Motion to Dismiss Petition

to Revoke Supervised Release,” which again stated that the district

court lacked authority to impose supervised release after his first

revocation. On November 12, 1998, the district court denied the

2 government’s and Stiefel’s motions. In denying Stiefel’s motion,

the district court noted that it had rejected Stiefel’s contentions

earlier in the order denying his “Application for Writ of Habeas

Corpus and Entry of Nunc Pro Tunc Order.” It directed Stiefel to

continue in his term of supervised release until April 12, 1999,

under the same terms and conditions as previously set.

On February 4, 1999, the government again filed a motion for

revocation, alleging alcohol intoxication in violation of his

release. Stiefel responded by filing another “Motion to Dismiss

Petition to Revoke Supervised Release,” which presented the same

issues that the district court already determined in its orders

denying Stiefel’s previous “Motion to Dismiss Petition to Revoke

Supervised Release” and “Application for Writ of Habeas Corpus and

Entry of Nunc Pro Tunc Order.” The district court denied Stiefel’s

motion. Moreover, on February 25, 1999, it revoked Stiefel’s

second term of supervised release and resentenced him to two terms

of 14 months imprisonment to run concurrently. These consolidated

appeals ensued.

II.

Before proceeding to the specific matter on appeal, we note

that, in his brief, Stiefel also questions the district court’s

application of

(h) to his sentence after revocation

of his first term of supervised release in May 1997. Stiefel did

not explicitly address that issue in his “Notice of Appeal In Forma

Pauperis.” Indeed, that notice only mentions the sentence that the

district court meted out after the second revocation. Furthermore,

3 under Federal Rule of Appellate Procedure 4(b), a defendant’s

notice of appeal must be filed in the district court within 10 days

after the entry of either the judgment or the order being appealed.

See Fed. R. App. P. 4(b)(1)(A)(i) & (ii). Here, Stiefel never

filed a notice of appeal regarding his sentence after the first

revocation of supervised release. Although Stiefel ultimately

filed an application for writ of habeas corpus, that was not a

notice of appeal. Even if we considered that application to have

been a notice of appeal, it was clearly not within the 10 day

requirement of Rule 4(b).

Notwithstanding those insufficiencies, Stiefel asserts that a

challenge of his sentence after the first revocation may proceed

because the district court’s imposition of a second term of

supervised release was an illegal sentence. He argues that under

United States v. Henry,

(5th Cir. 1983) (en banc), we

have the power to correct such illegal sentences at any time and

that a formal notice of appeal is not necessary. Stiefel’s

reliance on Henry is misplaced. The specific issue in that case

was whether a district court could alter parts of sentences that

were not illegal and which had been affirmed previously on appeal.

In discussing that issue, we noted the history of the district

courts’ power to correct sentences in relation to Rule 35 of the

Federal Rules of Criminal Procedure. At the time of Henry, Rule

35(a) provided in pertinent part that “[t]he court may correct an

illegal sentence at any time.” But in 1987, Rule 35 was amended,

and today, subsection (a) reads:

4 The court shall correct a sentence that is determined on appeal under 18 U.S.C. 3742 to have been imposed in violation of law, to have been imposed as a result of an incorrect application of the sentencing guidelines, or to be unreasonable, upon remand of the case to the court . . . .

There is no language that indicates that the court of appeals has

a right to correct any purportedly illegal sentence at any time.

Indeed, § 3742 does not permit an appeal beyond Rule 4(b)’s 10 day

period for appeal. See United States v. Early,

(5th

Cir. 1994). In light of these facts, Stiefel has waived any appeal

of the sentence that he received upon revocation of his first term

of supervised release.

III.

What is properly before this court is Stiefel’s challenge of

the district court’s revocation of his second term of supervised

release and its imposition of a 14 month term of imprisonment. We

will uphold Stiefel’s sentence after revocation of supervised

release “unless it is in violation of law or is plainly

unreasonable.” United States v. Mathena,

(5th Cir.

1994) (citing United States v. Headrick,

(5th

Cir. 1992)).

Steifel first contends that the second term of supervised

release, which he violated and which he is being punished for with

a 14 month term of imprisonment, was unconstitutionally meted out

by the district court after he violated his first term of

supervised release and, as such, should not form the basis for any

subsequent sentences. In essence, he attacks his current term of

imprisonment by asking us to review the sentence that he originally

5 failed to appeal. That argument, however, is foreclosed. The

district court addressed Stiefel’s constitutionality contention in

its order denying his “Application for Writ of Habeas Corpus and

Entry of Nunc Pro Tunc Order.” There, the district court

specifically concluded that the application of § 3583(h) to

Stiefel’s first revocation did not violate the Ex Post Facto

Clause. Because that issue was fully litigated, the doctrine of

res judicata bars any further litigation. See United States v.

Shanbaum,

(5th Cir. 1994) (“[I]ssue preclusion

prohibits a party from seeking another determination of the

litigated issue in the subsequent action.”).

Stiefel next argues that the district court did not have

authority pursuant to

(e) & (h) to incarcerate him

for a second violation of supervised release because those

provisions do not speak of second revocations. Section 3583(e)(3)

states, in pertinent part, that “[t]he court may . . . revoke a

term of supervised release, and require the defendant to serve in

prison all or part of the term of supervised release authorized by

statute for the offense that resulted in such term of supervised

release without credit for time previously served on postrelease

supervision . . . .,” while § 3583(h) allows the district court the

leeway of combining prison time and supervised release when

resentencing a defendant who violates supervised release.1

1 The version of § 3583(e)(3) in effect at the time of Stiefel’s original sentencing in 1992 also had language to that same effect. As for § 3583(h), it provides:

When a term of supervised release is revoked and

6 Although neither provision mentions second or further revocations,

they do permit more than one revocation of supervised release. The

grant of statutory authority in § 3583(e) refers to the district

court’s general power to revoke a term of supervised release after

considering certain factors. Hence, the issue under § 3583(e) is

not whether a second revocation may occur, but whether the district

court, after considering certain factors, believes that revocation

is appropriate for a defendant on supervised release. If a

defendant is on supervised release and the district court believes

that revocation is appropriate pursuant to § 3583(e)(3), then the

district court may require the defendant to serve prison time.

That is apparently what occurred in the present case, and we see no

violation of law or unreasonableness in the district court’s

decision.

Finally, Stiefel believes that the time periods noted in

§ 3583(e) & (h) are absolute and were fixed at the time of his

first revocation. Therefore, he contends that, when the district

court resentenced him at the first revocation in May of 1997 to 24

more months of imprisonment and supervised release, it set the

the defendant is required to serve a term of imprisonment that is less than the maximum term of imprisonment authorized under subsection (e)(3), the court may include a requirement that the defendant 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.

(h).

7 putative discharge date as April of 1999,2 and as such, it could

not have resentenced him beyond that date at the second

revocation.3 That argument is without merit. At his first

revocation, Stiefel was resentenced to 10 more months of

imprisonment and 14 months of supervised release. Due to his

failure to comply with the conditions of the second term of

supervised release, the district court again revoked Stiefel’s

supervised release and resentenced him to 14 months of

imprisonment, without credit for the 12 months served on supervised

release. That was consistent with the strictures of § 3583(e)(3).

And there is nothing in § 3583(e) that directly states that the

time periods in that statute are absolute and fixed from the time

of the first revocation.

It is true that before the 1994 amendments to § 3583,

revocation of supervised release normally resulted in fixed terms

of imprisonment or supervised release because supervised release

could not be ordered in addition to prison time. Thus, upon

revocation, the district court could extend a defendant’s

supervised release to the maximum authorized under law pursuant to

§ 3583(e)(2), or it could imprison a violating defendant to a

definite term of imprisonment depending on the classification of

2 Stiefel was credited with one month’s prison time; thus, the total time of restrained liberty would have terminated early in April of 1999, rather than May of 1999. 3 Thus, Stiefel argues that, at the second revocation in February of 1999, the district court should have deducted the 12 months that Stiefel spent on his second term of supervised release from the 14 month term of imprisonment so that he would be released by April of 1999.

8 the defendant’s offense pursuant to § 3583(e)(3).4 In the instant

case, the supervised release could have been extended from the

original two years to three years, or the district court could have

ordered Stiefel incarcerated for up to two years of imprisonment.5

But at the time of the first revocation, the district court did not

solely rely on § 3583(e). Instead, the district court utilized

that section with § 3583(h) and formulated its sentence. Read in

conjunction with § 3583(h), § 3583(e) need not be interpreted as

reflecting any fixed or absolute terms of supervised release or

imprisonment.6 Based on these considerations, we find Stiefel’s

arguments to be without merit and hold that no violation of law or

unreasonableness was committed on the part of the district court.

4 The terms were essentially fixed under the old § 3583 because after finishing the imprisonment time, a defendant would be released with no further supervised release that could ostensibly be violated to create further restraints on liberty. 5 Stiefel’s offense that resulted in supervised release was a Class C or D felony. 6 Although this raises the hypothetical of a never-ending punishment and the possibility of an Ex Post Facto violation as to the first revocation, that argument is foreclosed due to Stiefel’s failure to appeal and because of the doctrine of res judicata. See discussion supra. As to the sentence after the second revocation, there is no such hypothetical danger since apparently the district court only applied § 3583(e)(3). Stiefel has no more supervised release that he could possibly violate to cause further restraints on liberty.

9 IV.

For the assigned reasons, we affirm the district court’s

revocation of Stiefel’s second term of supervised release and its

imposition of a 14 month term of imprisonment.

10