UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL JEFFREY MORRIS,

Defendant-Appellant.

No. 98-5165

(N. District of Oklahoma)

(D.C. No. 92-CR-60-B)

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.

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identical to Morris' claim in United States v. Wash, No. 95-4156, 1996 WL 536563, at *1-*2 (10th Cir. Sept. 23, 1996) (unpublished disposition). Morris notes that because Wash is an unpublished disposition, it is not binding on this panel. See 10th 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F.3d 761, 767 (8th Cir. 1996); United States v. Sandoval, No. 95-1326, 1995 WL 656488, at *1 (1st Cir. Nov. 7, 1995) (unpublished disposition); see also United States v. Lominac, 144 F.3d 308, 314 n.7 (4th Cir. 1998) (distinguishing Wash, St. John, and Sandoval on that ground that "[i]n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