UNITED STATES of America, Appellee, v. Robert McNAUGHT, Defendant-Appellant, 396 F. App'x 772

SUMMARY ORDER Defendant-Appellant, Robert McNaught (“Appellant”), appeals from a judgment entered on November 1, 2006, in the United States District Court for the Southern District of New York (Koeltl, J.) revoking Appellant’s prior term of supervised release and sentencing him to a term of 30 months’ imprisonment to be followed by a new term of five years’ supervised release. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

Appellant’s sole claim on appeal is that the district court erred in reimposing a term of supervised release of five years after it revoked his initial term of supervised release and sentenced him to a term of 30 months’ imprisonment. Appellant argues that the maximum term of supervised release applicable is five years less his term of 30 months’ imprisonment. This argument is without merit. Where a defendant violates the conditions of a term of supervised release, 18 U.S.C. § 3583(

h) authorizes a court, subject to certain limitations, to revoke the original term of supervised release and impose a term of imprisonment to be followed by a new term of supervised release. “The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.” Id. In the present case, 21 U.S.C. § 841(b)(1)(

A) provided the original term of supervised release. We apply the version of the statute in effect at the time Appellant committed the offense. See United States v. Smith, 354 F.3d 171, 172-73 (2d Cir.2003). At that time, 21 U.S.C. § 841(b)(1)(

A) stated: “[ a] ny sentence under this subparagraph shall, in the absence of such a prior conviction, impose a term of supervised release of at least 5 years in addition to such term of imprisonment....” The lack of a stated maximum term in § 841(b)(1)(

A) authorizes a maximum term of lifetime supervised release. “The rule in this circuit is that in view of the ‘at least’ language, no maximum term of supervised release is imposed by such a provision, and therefore that the statutory maximum term of supervision release is a life term.” United States v. Gibbs, 58 F.3d 36, 37-38 (2d Cir.1995) (construing 21 U.S.C. § 841(b)(1)(C), which contains the same “at least” language as § 841(b)(1)(A)). Appellant argues that 18 U.S.C. § 3583(

b) requires a maximum five-year term of supervised release for Class A felonies — which, by definition, includes a violation of 21 U.S.C. § 841(b)(1)(A). See 18 U.S.C. § 3559(a)(1). Appellant’s statement of the law is incomplete. 18 U.S.C. § 3583(

b) states: “[ejxcept as otherwise provided, the authorized terms of supervised release are ... for a Class A ... felony, not more than five years.” Based in part on the language, “[ejxcept as otherwise provided,” this Court has held that § 841(b)(l)(A)’s minimum term of five years’ supervised release supercedes § 3583(b)(l)’s maximum term. See United States v. Eng, 14 F.3d 165, 173 (2d Cir.1994). Consequently, in Eng, where 21 U.S.C. § 841(b)(1)(A) (1988) provided the applicable term of supervised release, we held that the district court did not violate 18 U.S.C. § 3583(

b) when it sentenced the defendant to a lifetime term of supervised release following his term of incarceration. In the present case, 18 U.S.C. § 3583(

h) required the district court to subtract Appellant’s term of 30 months’ imprisonment from the maximum lifetime term of supervised release authorized by 21 U.S.C. § 841(b)(1)(A). The five year term of supervised release the district court imposed is well within that range. Therefore, the district court did not err in imposing this term of supervised release. We have considered all of Appellant’s contentions on this appeal and have found them to be without merit.

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED. .Because Appellant failed to raise his present objection before the district court, we review his sentence for “plain error.” United States v. Villafuerte, 502 F.3d 204, 207 (2d Cir.2007). The “imposition of a sentence in violation of law would be plain error.” United States v. A-Abras Inc., 185 F.3d 26, 30 (2d Cir.1999) (internal quotation marks omitted). . According to the Indictment, Appellant's known narcotics related criminal activity occurred from about May 2001 through the time of his arrest on or about July 12, 2001.

We therefore look to the version of 21 U.S.C. § 841(b)(1)(

A) in effect from February 18, 2000 to November 1, 2002. . We note that on November 2, 2002, between the time Appellant committed the underlying narcotics offense and the time of his sentencing for that offense on December 20, 2002, § 841(b)(1)(

A) was amended to read in relevant part, “Notwithstanding

section 3583 of Title 18, any sentence under this subpara-graph shall, in the absence of such a prior conviction, impose a term of supervised release of at least 5 years in addition to such term of imprisonment (emphasis added). This amendment made explicit what this Court held in United States v. Eng, 14 F.3d 165, 173 (2d Cir.1994), namely that the provision in § 841(b)(1)(

A) that a term of supervised release must be “at least 5 years” trumps the general provision in 18 U.S.C. § 3583(

b) that such a term must be "not more than five years.” Though it made § 841(b)(1)(

A) explicit on this issue, this amendment does not change the fact that at the time Appellant committed the narcotics offense, the law in this Circuit was clear that the maximum lifetime term of supervised release authorized by § 841(b)(1)(

A) was controlling.