[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 27, 2007

THOMAS K. KAHN

N o . 06-12886

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket No. 01-01047-CR-KMM

U N IT E D STATES OF AMERICA,

Plaintiff-Appellee,

versus

MONIQUE ROBERTS,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Southern District of Florida

(A p ril 27, 2007)

B efo re DUBINA, CARNES and BARKETT, Circuit Judges.

P E R CURIAM:

M o n iq u e Roberts appeals the 12-month term of supervised release following

h er 20-month prison term that was imposed upon revocation of her prior

s u p e r v is ed release. She argues that an additional term of supervised release under

th e applicable version of the supervised release statute, 18U.S.C. § 3583(h), is im p e r m is sib le because she has already served the statutory maximum allowed u n d er 18U.S.C. § 3583(e)(3). We agree, reversing the sentence imposed by the d istrict court and remanding.

I.

F o llo w in g an entry of plea of guilty to importing cocaine into the United S tates on or about November 7, 2001, in violation of 21U.S.C. § 952(a), the d istrict court sentenced Roberts to thirty-seven months' imprisonment, to be fo llo w ed by two years of supervised release. After being released from custody, R o b e rts violated the terms of her supervised release and was ultimately rearrested o n December 30, 2004.

A revocation hearing was held on January 25, 2005, which resulted in the rev o catio n of Roberts's term of supervised release, and a custodial sentence of "tim e served," without specifying how much time this involved. The district court also imposed another term of supervised release of three years ("Roberts I").

After being released from custody, Roberts again violated the terms of her su p erv ised release. The district court entered another order on November 21, 2005 rev o k in g Roberts's new three-year term of supervised release, sentencing her to th ree months in prison,1 and imposing another term of supervised release of tw en ty-fo u r months ("Roberts II").

After being released from imprisonment, Roberts again violated the terms of h e r supervised release. At the revocation hearing, both parties requested a sentence o f twenty months' imprisonment. The district court imposed a sentence of twenty m o n th s' imprisonment, to be followed by twelve months of supervised release.

Defense counsel objected, arguing that the district court could not impose an ad d itio n al term of supervised release, because Roberts's aggregate terms of im p riso n m en t after the revocations of her supervised release terms already met the statu to ry maximum term of incarceration prescribed by 18U.S.C. § 3583. The d istrict court overruled the objection and sentenced Roberts to twenty months' im p riso n m en t, to be followed by twelve months of supervised release. Roberts now a p p e a ls .

II.

W e review the legality of a sentence and issues of statutory construction de n o v o . United States v. Pla, 345 F.3d 1312, 1313 (11th Cir. 2003); United States v. C o b ia , 41 F.3d 1473, 1475 (11th Cir. 1995). T h e version of 18U.S.C. § 3583(e)(3) in effect at the time of the offense,2 p r o v id e d that a court may not require a defendant whose supervised release term w as revoked to serve more than two years in prison if the offense was a class C f elo n y .3 18U.S.C. § 3583(e)(3) (October 26, 2001 to November 1, 2002) (amended 2 0 0 3 ). Further, the two-year maximum term of imprisonment prescribed by § 3583(e)(3) is to apply in the aggregate. Williams, 425 F.3d at 989.

W ith reference to supervised release, the following version of 18U.S.C. § 3 5 8 3 (h ) was in effect at the time the underlying offense was committed: When a term of supervised release is revoked and the defendant is req u ired to serve a term of imprisonment that is less than the m a x im u m term of imprisonment authorized under subsection (e)(3), th e court may include a requirement that the defendant be placed on a term of supervised release after imprisonment.

1 8U.S.C. § 3583(h) (1995) (amended 2003) (emphasis added).

We must determine whether this version of 18U.S.C. § 3583(h) authorizes a c o u r t to impose an additional term of supervised release when the defendant, as h ere, has served the maximum term of imprisonment. "[T]he first canon of statu to ry construction" is "that courts give effect to the plain and unambiguous lan g u ag e of a statute." Owens v. Samkle Auto. Inc., 425 F.3d 1318, 1321 (11th C ir. 2005). "As in any case of statutory construction, our analysis begins with the la n g u a g e of the statute. And where the statutory language provides a clear answer, it ends there as well." Id. (quotation marks and citations omitted).

The statute permits a court to impose an additional term of supervised release only "when a term of supervised release is revoked and the defendant is req u ired to serve a term of imprisonment that is less than the maximum term of im p riso n m en t authorized under subsection (e)(3)." 18U.S.C. § 3583(h) (emphasis ad d ed ). The use of the word "and" in this statutory context is unambiguous. Am.

B an k ers Ins. Group v. United States, 408 F.3d 1328, 1332 (11th Cir. 2005) ("[U ]n less the context dictates otherwise, the word `and' is presumed to be used in its ordinary sense, that is, conjunctively."). Thus, according to a plain reading of th is statute, two independent prongs must be satisfied before an additional su p erv ised release term may be imposed under this section. First, the prior term of su p erv ised release must be revoked. Second, the defendant must not have served a term of imprisonment equal to or greater than the maximum term of imprisonment au th o rized under § 3583(e)(3). See also United States v. Merced, 263 F.3d 34, 37 (2 n d Cir. 2001) (persuasive authority); United States v. Brings Plenty, 188 F.3d 1 0 5 1 , 1053 (8th Cir. 1999) (persuasive authority); United States v. Beals, 87 F.3d 8 5 4 , 857-58 (7th Cir. 1996) (persuasive authority), overruled on other grounds by U n ited States v. Withers, 128 F.3d 1167, 1172 (7th Cir. 1997).

In this case, while the first requirement was satisfied, the second requirement w as not. Roberts will have served an aggregate of at least twenty-four months (or 2 years) of post-revocation custody in prison, the maximum term of incarceration p rescrib ed by § 3583(e)(3) for a class C felony, at the time of the commencement o f the present supervised release term.

B ecau se Roberts will have served the statutory maximum term of im p riso n m en t authorized by § 3583(e)(3) once she completes the current twenty m o n th prison sentence, the plain language of 18U.S.C. § 3583(h) prohibited the d istrict court from imposing the present term of supervised release. Therefore, we c o n c lu d e that the district court's latest imposition of supervised release constituted rev ersib le error, and its order to this effect is vacated.

R E V E R S E D AND REMANDED.

1 Although the record is not clear on this issue, both parties agreed at sentencing, and on appeal, that Roberts served four months' imprisonment.

2 Because there is no congressional intent indicating otherwise, the supervised release statute-- [18U.S.C. § 3583]--in effect on November 7, 2001, when the underlying offense of Count One of the indictment was committed, governs the penalties that may be imposed on Roberts. Johnson v. United States, 529 U.S. 694, 701-02 (2000) ("[P]ostrevocation penalties relate to the original offense." ). United States v. Williams, 425 F.3d 987, 988 n.1 (11th Cir. 2005).

3 Section 952(a) of Title 21 of the United States Code, the offense for which Roberts was convicted, was a class C felony at the time of Roberts's conviction. See 18U.S.C. § 3559(a)(3) (Nov. 13, 1998 - April 29, 2003 version) (discussing that a class C felony is one that has a maximum term of imprisonment of more than ten years, but less than twenty-five years); 21U.S.C. § 960(b)(3) (February 18, 2000 - November 1, 2002 version) (noting that the maximum term of imprisonment for violating 21U.S.C. § 952(a) was 20 years' imprisonment).