UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                                No. 02-4879
RICHARD EUGENE SPEARS, a/k/a
Trashmouth, a/k/a Trash,
               Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Middle District of North Carolina, at Durham.
                William L. Osteen, District Judge.
                            (CR-94-185)

                      Submitted: May 30, 2003

                      Decided: June 17, 2003

      Before WIDENER and MICHAEL, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

Louis C. Allen, III, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, L. Patrick
Auld, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
2                      UNITED STATES v. SPEARS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Richard Eugene Spears appeals from a district court’s judgment
revoking his term of supervised release and imposing a sixteen-month
sentence and three years of supervised release. On appeal, Spears’
sole argument is that the district court erred in imposing a supervised
release term of three years because it exceeds the term imposed upon
his first revocation. We affirm.

   In 1995 Richard Eugene Spears pled guilty to drug conspiracy in
violation of 21 U.S.C. § 846 (2000) and received 72 months imprison-
ment and ten years of supervised release. Following his release,
Spears violated certain conditions of his supervised release. In August
2001, after holding a hearing, the district court sentenced Spears to
seven months imprisonment and two years of supervised release,
incorporating by reference the original judgment. In July 2002, the
Probation Office again petitioned the court regarding Spears’ alleged
violations of the conditions of supervised release. At a hearing held
on October 29, 2002, the district court found that Spears had in fact
violated his conditions of supervised release. The court accordingly
revoked Spears’ supervised release and imposed a sentence of sixteen
months imprisonment and a supervised release term of three years
under the same conditions previously imposed. As Spears admits, his
counsel did not make an objection to the sentence imposed by the
court. The district court entered another judgment and commitment
order to this effect on November 21, 2002, again incorporating the
initial judgment.

   Spears argues that the district court erred in connection with his
second supervised release revocation proceeding by imposing a term
of supervised release in excess of seventeen months (i.e., the prior
supervised release term of two years minus the prior prison term upon
revocation of seven months). Ostensibly, Spears argues that the term
                        UNITED STATES v. SPEARS                          3
of supervised release imposed at the first revocation hearing, two
years, supplanted the term of supervision imposed at the original sen-
tencing hearing, ten years, and thereby limited the period of time that
could be imposed to seventeen months in the event that the reimposed
term of supervision was subsequently revoked.

   Since Spears failed to object to his sentence below, his claim is
reviewed for plain error. Fed. R. Crim. P. 52(b); United States v.
Olano, 

, 731-32 (1993). Four conditions must be met
before this Court will notice plain error: (1) there must be error; (2)
it must be plain under current law; (3) it must affect substantial rights,
typically meaning the defendant is prejudiced by the error in that it
affected the outcome of the proceedings; and (4) the error must seri-
ously affect the fairness, integrity, or public reputation of judicial pro-
ceedings. 

.

   In Johnson v. United States, 

, 702 (2000), the
Supreme Court determined that the validity of petitioner’s sentence
depended solely on whether the imposition of supervised release fol-
lowing reimprisonment was authorized by the former 18 U.S.C.
§ 3583(e) (1988 & Supp. V), because he committed the offense prior
to the effective date of the amendment. 

original
offense concluded on July 24, 1994. Because Spears committed his
offense prior to September 13, 1994, the applicable statute in deter-
mining Spears’ post-revocation sentence is 18 U.S.C. § 3583(e)(3).
This section states that a district court may:

     (3) revoke a term of supervised release, and require the per-
     son to serve in prison all or part of the term of supervised
     release without credit for time previously served on postre-
     lease supervision, if it finds by a preponderance of the evi-
     dence that the person violated a condition of supervised
     release, . . . except that a person whose term is revoked
     under this paragraph may not be required to serve more than
     5 years in prison if the offense that resulted in the term of
     supervised release is a class A felony . . . .

   In Johnson, the Supreme Court held that § 3583(e)(3) authorizes a
district court to impose a period of supervised release following reim-
prisonment after the revocation of supervised release. 

4                      UNITED STATES v. SPEARS
Court noted that § 3583(e)(3) limits the possible prison term to the
duration of the term of supervised release originally imposed, and the
new prison term is limited further according to the gravity of the orig-
inal offense. 

this case, the court’s imposition of sixteen
months imprisonment and a three-year term of supervised release was
less than the duration of the term of supervised release originally
imposed, minus the seven months of incarceration after the first revo-
cation, and within the statutory maximum reflected in § 3583(e)(3).

   Spears contends that, because his initial term of supervised release
had been revoked, at which time a new term of imprisonment and
supervised release was imposed, the two years of supervised release
imposed at the second revocation hearing should define the parame-
ters of any subsequent postrevocation proceeding, and not the ten
years imposed at the original sentencing. This argument is foreclosed
by Johnson. Specifically, the Johnson Court stated that "postrevoca-
tion penalties [imposed under 18 U.S.C. § 3583] relate to the original
offense." 

added). See United States v. Fareed,

, 247 (4th Cir.) (observing that, in Johnson, the Supreme
Court held that post-revocation prison sentences are sentences for the
original federal crime, not punishment for the violations of the terms
of supervised release), cert. denied, 

(2002); United
States v. St. John, 

, 766 (8th Cir. 1996) (finding maximum
period of time defendant’s freedom can be restrained upon revocation
of supervised release is capped by original supervised release term);
United States v. Greene, 

, 813 (S.D.W. Va. 2002)
(holding that proper focus in imposing a second revocation sentence
of imprisonment is not the additional term of supervised release
imposed after the first revocation, but rather the statutory maximum
sentence reflected in § 3583(e)(3) as a result of the classification of
the offense). We therefore conclude that the district court did not
commit plain error in imposing a three-year term of supervised
release at the second revocation hearing.

  Accordingly, we affirm the district court’s judgment. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

                                                            AFFIRMED