No. 96-1288


United States of America,                       *
                                                *
      Appellee,                                 *
                                                * Appeal from the United States
          v.          *                         District Court for the Eastern
                                                * District of Missouri.
James Edward Evans,                             *
                                                *
         Appellant.                             *




                          Submitted:       June 11, 1996

                            Filed:     July 2, 1996


Before MORRIS SHEPPARD ARNOLD and FLOYD R. GIBSON, Circuit Judges, and
      ROSENBAUM,* District Judge.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     James Edward Evans appeals the district court's order revoking his
supervised release and sentencing him to a term of imprisonment.        We affirm
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the judgment of the district court .


                                           I.
     In 1992, Evans was convicted in the Western District of Texas of
possession of marijuana with the intent to distribute it, see 21 U.S.C.
§ 841(a)(1), and was sentenced to 51 months in prison




     *
     The HONORABLE JAMES M. ROSENBAUM, United States District
     Judge for the District of Minnesota, sitting by
     designation.
     1
      The Honorable Charles A. Shaw, United States District Judge
for the Eastern District of Missouri.
followed by five years of supervised release.                   Because the maximum
supervised release term for this offense is three years, see 18 U.S.C.
§ 3583(b)(2), see also 18 U.S.C. § 3559(a), his sentence was illegal.


     In 1994, jurisdiction over Evans's supervised release was transferred
from the Western District of Texas to the Eastern District of Missouri.
In 1995, Evans violated the conditions of his supervised release, and the
district court sentenced him to seven months in prison followed by 24
months of supervised release.        Later that year, Evans again violated the
conditions of his supervised release, so the district court revoked it and
sentenced him to 13 months in prison.            It is this third sentence that Evans
appeals.


                                        II.
                                            A.
     Evans first argues that the district court improperly relied on his
illegal original sentence in determining his sentence.                  He asks us to
remand the case to the district court with instructions to resentence him
without considering the illegal sentence.             Evans relies upon Williams v.
United States, 

, 201-03 (1992), but we do not think that that
case helps him.    In Williams, the Supreme Court held that it was reversible
error for a district court to base a sentence solely upon considerations
not approved by the sentencing guidelines.             

     Williams also indicated, however, that where the district court
weighed    both   proper   and   improper    considerations     in   determining   the
sentence, remand is not necessary if it is clear that the district court
would have imposed the same sentence in the absence of the unauthorized
consideration.    

    We have carefully reviewed the record and
find no evidence that the district court considered Evans's illegal
sentence at all in




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arriving at his sentence.      In fact, when he tried to argue that his
original sentence was illegal, the court told him that the issue was
irrelevant to the revocation proceeding.


                                     B.
     Evans next contends that, when he first violated his release terms
in 1995, the district court should not have sentenced him to a second term
of supervised release.      We have always permitted such "stacking" of
supervised release terms, see, e.g., United States v. Schrader, 

, 624-25 (8th Cir. 1992).      The Fifth Circuit, however, prohibited
"stacking" at the time that Evans was originally convicted, see, e.g.,
United States v. Holmes, 

, 272 (5th Cir. 1992), and he asserts
that this rule should have applied to him because he was convicted in
Texas.   He reasons that the district court lacked authority to revoke his
release because it was illegally imposed in the first place.


     Evans is essentially trying to challenge his second sentence, which
the district court imposed in 1995.       Because he never appealed from that
earlier proceeding, we believe that he waived the issue of any legal
infirmity in that sentence.     See, e.g., United States v. Kress, 

, 373 (8th Cir. 1995).     Even if we assume that he has not waived the
issue, and further assume that he is correct that the law of the Fifth
Circuit as it stood when he was sentenced the second time should have
applied to his case (a proposition that we seriously doubt), however, his
argument still fails.


     Congress amended the relevant statute, see 18 U.S.C. § 3583(h), in
1994 to make it clear that "stacking" was permissible.     See, e.g., United
States v. Hartman, 

, 671 (8th Cir. 1995) (per curiam).    Thus the
fact that the Fifth Circuit prohibited "stacking" at the time that Evans
was originally convicted is beside the point.     The amended statute applied
to his




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case in 1995 because the district court did not increase the sentence for
his original crime but merely punished him for violating his supervised
release, an event that occurred after the amendment became effective.   See,
e.g., United States v. Cooper, 

, 1251-52, 1252-53 n.7 (8th Cir.
1994), aff'd, 

(8th Cir. 1995) (per curiam), cert. denied, 

(1996).


                                     C.
     Evans argues finally that the district court lacked the power to
revoke his supervised release because his transfer from the Western
District of Texas to the Eastern District of Missouri was illegal.       He
maintains that the terms and conditions of his release were modified when
he was transfered to a jurisdiction that permitted "stacking," and that his
transfer was therefore covered by Fed. R. Crim. P. 32.1(b), which requires
a "hearing and assistance of counsel ... before the terms or conditions of
... supervised release can be modified."   This argument is without merit.



     In the first place, although Evans now says that he had no notice of
his transfer, the record shows that he asked for it.      In any event, we
agree with the Ninth Circuit that the "location of [supervised release]
jurisdiction is not ... a term or condition" within the meaning of Fed. R.
Crim. P. 32.1(b).     United States v. Ohler, 

, 858 (9th Cir.
1992).   The fact that the Fifth Circuit (at one time) prohibited "stacking"
terms of supervised release, and the Eighth Circuit permitted it, is
therefore irrelevant.    The change in venue did not affect the terms and
conditions of Evans's release (those terms were clearly set out by the
Western District of Texas in a document called "Standard Conditions of
Supervision"); rather, it affected what happened if he violated them.




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                                III.
     For the foregoing reasons, we affirm the judgment of the district
court.


     A true copy.


          Attest:


               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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