Appeal from Order Entered by the United States District Court for the Western District of Pennsylvania (Criminal No. 92-37)
Before: GREENBERG, ALITO and McKEE, Circuit Judges
McKEE, Circuit Judge Jeffrey Brady appeals from an Order of the
Opinion filed: June 28, 1996 )
For the reasons that follow we will affirm the order of the district court.
On February 19, 1992, a grand jury in the Western District of Pennsylvania indicted Jeffrey Brady and Raymond Gareis for knowingly, intentionally, and unlawfully possessing cocaine with intent to distribute, in violation of 21 U.S.C. Section(s) 841(a)(1) and 841(b)(1)(c). On April 13, 1992, Brady pleaded guilty to the charge, and on February 23, 1993, the district court sentenced Brady to a term of 15 months imprisonment followed by 5 years of supervised release. After serving part of his sentence in a Federal Correctional Institution and part in a half-way house, Brady was released from Bureau of Prisons custody on May 2, 1994, and began his 5 year term of supervised release.
On September 8, 1995, the United States Probation Office filed a Petition on Probation and Supervised Release alleging that Brady had violated the terms of his supervised release by, among other things, testing positive for using cocaine and being arrested for attempted burglary by a police officer who observed him committing the offense. The violations occurred in July and August of 1995. Brady was arrested on the violation charges in Pennsylvania in September of 1995, and on November 17, 1995, a hearing was held in the district court for the Western District of Pennsylvania. At that hearing, Brady admitted that he had violated the terms of his supervised release; and he agreed to its revocation and the imposition of a term of imprisonment of 12 months plus one day.
The district court found Brady in violation of his supervised release, revoked the term of supervised release, and imposed a 12 month plus one day prison term to be followed by a 36 month term of supervised release. Brady objected to the imposition of the 36 months of supervised release, and argued that it was an improper ex post facto punishment. However, the district court rejected that contention. This appeal followed.
Our review of the district court's determination that a legislative act does not violate the ex post facto prohibition is plenary. Government of the Virgin Islands v. D.W., 3 F.3d 697, 698 n. 2 (3d Cir. 1993).
When Brady was originally sentenced on February 23, 1993, the district court could not impose a new term of supervised release when an original term of supervised release was revoked and imprisonment imposed as a sanction. 18 U.S.C. Section(s) 3583(e)(1988 & Supp. IV); United States v. Malesic, 18 F.3d 205 (3d Cir. 1994). However, after Brady began serving his original five year term of supervised release, but prior to his violation of that supervised release in July and August of 1995, 18 U.S.C. Section(s) 3583 was amended and a new subsection was enacted authorizing a district court to impose a new term of supervised release upon a revocation of supervised release. The amendment reads: (h) Supervised release following revocation.-
When a term of supervised release is revoked and 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 ...