United States v. Morris ( 1999 )

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This order and judgment is not binding precedent, except under the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(10 th Cir. Sept. 23, 1996) (unpublished disposition).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Wash is an unpublished disposition, it is not binding on this panel.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)
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(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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