United States v. Johnson

MEMORANDUM **

On November 13, 2000, Appellant Donald Johnson was found in violation of supervised release, and sentenced to 29-months imprisonment to be followed by 30 months of supervised release. On May 10, 2004, Johnson was again found in violation of supervised release, and sentenced to a term of 8-months’ incarceration, followed by 23 months of supervised release. He now appeals both revocations of supervised release. Because Johnson did not timely appeal the November, 2000 revocation, we have no jurisdiction to review it. Fed. RApp. P. 4(b). We have jurisdiction over Johnson’s timely appeal of the district court’s May 10, 2004 revocation of his supervised release under 28 U.S.C. § 1291 , and we affirm.

We review ex post facto claims and sufficiency of due process at a revocation proceeding de novo. Hunter v. Ayers, 336 F.3d 1007, 1011 (9th Cir.2003); United States v. Havier, 155 F.3d 1090, 1092 (9th Cir.1998).

Because the parties are familiar with the facts, we recite them only as necessary for this decision. Johnson argues that his sentence runs afoul of the Ex Post Facto Clause. At the time of his conviction in 1990, we had held that under 18 U.S.C. § 3583 , a defendant…