Case: 13-40119       Document: 00512307554           Page: 1    Date Filed: 07/15/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                              FILED
                                                                             July 15, 2013
                                       No. 13-40119
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JOSE ANGEL HERNANDEZ,

                                                   Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:08-CR-87-1


Before HIGGINBOTHAM, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Jose Angel Hernandez pleaded guilty to one count of alien transporting,
a violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(ii). Among other things, he
was sentenced to a three-year term of supervised release—the maximum




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
     Case: 13-40119         Document: 00512307554             Page: 2      Date Filed: 07/15/2013

                                          No. 13-40119

permitted by statute.1 That term began on October 30, 2009 and was set to
expire on October 29, 2012.
       In May 2012, a federal district court found that Hernandez violated a
condition of his release. Rather than revoking his release, the court extended
his term of release to May 2013. A probation officer later petitioned to revoke
Hernandez’s release based on conduct taking place in November 2012—that is,
based on conduct taking place after the three-year term had lapsed, but before
the extended term had lapsed. Based on that petition, the district court
revoked Hernandez’s release and sentenced him, among other things, to nine
months imprisonment.
       The district court had no authority to impose a revocation sentence. We
are aware of only one provision that might have authorized the extension of
Hernandez’s term of supervised release: 18 U.S.C. § 3583(e)(2). That provision
allows a court to “extend a term of supervised release if less than the maximum
authorized term was previously imposed.”2 Because the maximum authorized
term was previously imposed, the district court had no authority to extend
Hernandez’s term of release past October 29, 2012. As Hernandez’s term of
release could not extend into November 2012, the district court was not
permitted to order a revocation sentence based on conduct that took place
during that period. The government expressly agrees that this is a plain error
we ought correct. We therefore VACATE the judgment of revocation, VACATE
the sentence based on that judgment, and REMAND for expedited proceedings
consistent with this opinion. The mandate shall issue forthwith.



       1
         See 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(ii); see also 18 U.S.C. §§ 3559(a)(4) (classifying
Hernandez’s offense as a Class D felony), 3583(b)(2) (setting maximum term of supervised
release for Class D felonies at three years).
       2
           18 U.S.C. § 3583(e)(2) (emphasis added).

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