                                                        [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                  FILED
                         ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                             October 25, 2005
                               No. 05-11297
                                                            THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                      D. C. Docket No. 01-00082-TP-PAS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

ALFREDO ARIAS, JR.,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                              (October 25, 2005)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Alfredo Arias, Jr., appeals a 51-month term of supervised release that was
imposed following a revocation of his previous term of supervised release. On

appeal, Arias argues that the district court erred when it sentenced him to 9 months

of incarceration and 51 months of supervised release without granting credit for the

time Arias had previously spent at a community corrections center (“CCC”), as a

result of prior modifications to his pre-revocation term of supervised release.

       Arias failed to challenge the calculation of his post-revocation supervision

before the district court, and we therefore review that court’s calculation only for

plain error. See United States v. Rodriguez, 398 F.3d 1291, 1297-1298 (11th Cir.),

cert. denied, __ U.S. __, 125 S. Ct. 2935, 162 L. Ed. 2d 866 (2005). We may not

correct an error that a defendant failed to raise before the district court unless the

district court: (1) committed error, (2) that was plain, and (3) that affected

substantial rights. Id. at 1298. If these criteria are met, we may, in our discretion,

correct the plain error if it “‘seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.’” Id. (quoting United States v. Cotton, 535 U.S.

625, 631, 122 S. Ct. 1781, 1785, 152 L. Ed. 2d. 860 (2002)). Of course, when “the

explicit language of a statute or rule does not specifically resolve an issue, there

can be no plain error where there is no precedent from the Supreme Court or this

Court directly resolving it.” United States v. Lejarde-Rada, 319 F.3d 1288, 1291

(11th Cir. 2003) (per curiam).



                                             2
       Arias invokes 18 U.S.C. § 3583(e)(3) and (h) in support of his position.

Subsection (e)(3) provides that, upon revocation, a court may:

       require the defendant to serve in prison all or part of the term of
       supervised release authorized by statute for the offense that resulted in
       such term of supervised release without credit for time previously
       served on postrelease supervision, if the court . . . finds by a
       preponderance of the evidence that the defendant violated a condition
       of supervised release, except that a defendant whose term is revoked
       under this paragraph may not be required to serve on any such
       revocation more than 5 years in prison if the offense that resulted in
       the term of supervised release is a class A felony . . . .

18 U.S.C. § 3583(e)(3).1 Subsection (h) permits a court to include an additional

term of supervised release as part of a sentence imposed upon revocation and

establishes the maximum length of such term:

       When a term of supervised release is revoked and the defendant is
       required to serve a term of imprisonment, the court may include a
       requirement that the defendant be placed on a term of supervised
       release after imprisonment. 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.

18 U.S.C. § 3583(h). Arias concedes that § 3583(h) does not require a district

court “to give credit for time previously served on supervised release when it



       1
         Arias’s convictions for possession with intent to distribute cocaine and distribution of
cocaine, both in violation of § 841(a)(1), were Class A felonies, as the maximum penalty for each
was life imprisonment. See 21 U.S.C. § 841; 18 U.S.C. § 3559. Accordingly, the term of supervised
released authorized by statute was not more than five years. See 18 U.S.C. § 3583(b)(1).

                                               3
revokes the initial term of supervised release and orders an additional prison term

followed by a new term of supervised release.” United States v. Pla, 345 F.3d

1312, 1314 (11th Cir. 2003) (per curiam).2 Indeed, “the only credit that subsection

(h) clearly enumerates is time served in prison [after] revocation of supervised

release.” Id. However, Arias argues, the time he spent in the CCC was tantamount

to imprisonment, and should therefore be credited against his post-revocation

sentence. In other words, Arias contends that district court’s “modification” of the

original terms of Arias’s supervised release, to include periods of time at the CCC,

was a de facto revocation–and the time spent at the CCC was “imprisonment” that

must therefore be credited against his current post-revocation sentence.

       Assuming arguendo that § 3583(h) does, as Arias claims, entitle a defendant

to credit for incarceration served on all prior revocations of supervised release, it is

nevertheless clear that the district court did not commit plain error in calculating

Arias’s post-revocation sentence, for neither the statutory language nor controlling

precedent establish that time spent in a CCC on supervised release amounts to

“imprisonment” for purposes of § 3583(h). Arias argues that because the Bureau

of Prisons sometimes places a federal prisoner in a CCC or halfway house for the



       2
         In fact, this Court reached the same conclusion even when considering the language of
§ 3583(e)(3) separate and apart from the enactment of § 3583(h). See United States v. Gresham, 325
F.3d 1262, 1265-68 (11th Cir. 2003).

                                                4
final part of the prisoner’s term of incarceration, see 18 U.S.C. § 3624(c), the

requirement that Arias spend time at a CCC on supervised release should be

considered imprisonment. This argument is not persuasive, for we have held that

in the context of a probationary sentence, “residence in a halfway house is not

tantamount to imprisonment.” United States v. Chavez, 204 F.3d 1305, 1315

(11th Cir. 2000); see 18 U.S.C. § 3563(b)(11) .3

       Arias also argues that the statutory language governing modification of the

conditions of supervised release does not permit a district court to require that he

reside at a CCC without effecting a revocation. Section 3583(e)(2) authorizes a

district court to “modify . . . the conditions of supervised release . . . pursuant to the

provisions of the Federal Rules of Criminal Procedure relating to the modification

of probation and the provisions applicable to the initial setting of the terms and

conditions of post-release supervision.” 18 U.S.C. § 3583(e)(2). Under § 3583(d)

the court may, subject to certain limitations, order as a condition of supervised

release “any condition set forth as a discretionary condition of probation in section

3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it

considers to be appropriate.” 18 U.S.C. § 3583(d). Arias emphasizes that

subsection (b)(11), which allows the court to require residence at a CCC, is


       3
         We note that Arias does not contend that the circumstances of his residence at the CCC
were actually similar to those of confinement in a jail or prison.

                                              5
excluded as a possibility because it is not enumerated in § 3583(d). At least four

circuit courts of appeals, however, have rejected this argument, finding that the

omission of subsection (b)(11) was due to a clerical error–and that district courts

retain statutory authority to impose confinement in a CCC as a condition of

supervised release. See United States v. Del Barrio, 5th Cir. 2005, __ F.3d __,

(No. 04-40835, Sept. 21, 2005); United States v. D’Amario, 412 F.3d 253, 256

(1st Cir.) (per curiam), cert. denied, __ U.S. __, __ S. Ct. __, __ L. Ed. 2d __

(2005); United States v. Griner, 358 F.3d 979, 982 (8th Cir. 2004); United States v.

Bahe, 201 F.3d 1124, 1136 (9th Cir. 2000). Thus, the district court did not effect a

revocation by modifying the conditions of Arias’s original term of supervised

release to include residence at a CCC.

       Finally, Arias argues that the United States Sentencing Guidelines (the

“Guidelines”) support his position, because they provide that a term of

imprisonment ordered upon the revocation of supervised release can, in certain

circumstances, be satisfied by a term of supervised release that includes

community confinement or home detention. See U.S.S.G. § 7B1.3.4 As the

Government points out, however, Arias’s argument is not compelling because the

Guidelines also permit residence in a CCC to be imposed as a condition of


       4
         Arias also notes that the Guidelines sometimes permit defendants to serve portions of their
terms of imprisonment in a CCC. See U.S.S.G. § 5C1.1.

                                                 6
supervised release. See U.S.S.G. §§ 5D1.3(e)(1) and 5F1.1.

      In light of the foregoing, and in the absence of controlling authority to the

contrary, we conclude that the district court did not commit plain error by

declining to credit the time Arias spent at a CCC (due to modifications of the

conditions of his supervised release) against his sentence upon revocation.

AFFIRMED.




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