United States v. Sandoval ( 1995 )


Menu:
  • USCA1 Opinion



    November 7, 1995 [NOT FOR PUBLICATION]

    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT



    ____________________


    No. 95-1326

    UNITED STATES,

    Appellee,

    v.

    DON SANDOVAL,

    Defendant, Appellant.


    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF RHODE ISLAND


    [Hon. Mary M. Lisi, U.S. District Judge] ___________________

    ____________________

    Before

    Selya, Cyr and Boudin,
    Circuit Judges. ______________

    ____________________

    Don Sandoval on brief pro se. ____________
    Sheldon Whitehouse, United States Attorney, Margaret E. Curran __________________ ___________________
    and Gerard B. Sullivan, Assistant United States Attorneys, on brief ___________________
    for appellee.


    ____________________


    ____________________





















    Per Curiam. Defendant Don Sandoval appeals from __________

    the sentence the district court imposed on him following the

    revocation of a term of supervised release. The court

    sentenced defendant to both a term of imprisonment and a term

    of supervised release.

    Defendant first argues that the supervised release

    revocation provision, 18 U.S.C. 3583(e)(3), does not permit

    the imposition of a term of supervised release and a term of ___

    imprisonment. We rejected this precise argument in United ______

    States v. O'Neil, 11 F.3d 292 (1st Cir. 1993), and re- ______ ______

    affirmed our position in United States v. LaPlante, 28 F.3d 1 _____________ ________

    (1st Cir. 1994) (per curiam), cert. denied, 115 S.Ct. 910 _____________

    (1995). Defendant has not presented any persuasive reasons

    why we should change this recent statement of the law.

    Defendant's second argument on appeal is that the

    district court violated the prohibition of the ex post facto _____________

    clause by applying 3583(h) to him. This section was added

    in 1994. It specifically provides that when revoking a term

    of supervised release under subsection (e)(3), a district

    court may include a requirement of supervised release after

    imprisonment.

    To fall within the ex post facto prohibition, the ______________

    new law "must disadvantage the offender affected by it."

    Miller v. Florida, 482 U.S. 423, 430 (1987) (internal ______ _______

    quotations and citation omitted). Assuming the district



    -2-













    court used subsection (h), defendant was not disadvantaged.

    In O'Neil, we already had construed subsection (e)(3) to ______

    permit what subsection (h) now grants expressly. Cf. United ___ ______

    States v. Hartman, 57 F.3d 670, 671 (8th Cir. 1995) (per ______ _______

    curiam) (the legislative history of subsection (h) shows that

    subsection(e)(3) permits both incarceration and supervised

    release).

    Based on the foregoing, the judgment of the

    district court is affirmed. ________



































    -3-