This circuit has consistently and repeatedly held that revocation sentences imposed under 18 U.S.C. §(s) 3583(e)(3) may include both imprisonment and supervised release, as long as the aggregate of the two terms is less or equal to the original term of supervised release. See, e.g., United States v. Stewart, 7 F.3d at 1352 (stressing Schrader relied entirely on language of Section(s) 3583(e)(3) and not on relationship between Section(s) 3583(e) options or sentencing guidelines); United States v. Krabbenhoft, 998 F.2d at 594 ("term of supervised release" as used in Section(s) 3583(e) means the term of supervised release as originally imposed by the district court at sentencing); cf. United States v. Hartman, 57 F.3d 670, 671 n. 2 (8th Cir. 1995) (per curiam) (rejecting argument that recent enactment of 18 U.S.C. §(s) 3583(h) which expressly allows district courts to impose revocation sentence consisting of both imprisonment and supervised release indicates this court misinterpreted 18 U.S.C. §(s) 3583(e) and instead interpreting new legislation as confirmation of this court's interpretation). Schrader simply does not represent a judicial expansion, much less an unforeseeable or unexpected judicial expansion, of a criminal statute, if applied retroactively, which would operate precisely like an ex post facto law and thus violate due process.

Congress amended the relevant statute, see 18 U.S.C. §(s) 3583(h), in 1994 to make it clear that "stacking" was permissible. See, e.g., United States v. Hartman, 57 F.3d 670, 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.

Here it is plain that from the very outset, when the Sentencing Commission first raised the issue in its communication to Congress, Section 3583(h) was meant as nothing more than a congressional declaration that initially one federal appellate court, and later the majority of such courts that had considered the matter, had misread the original intent of Section 3583(e)(3). Indeed, this is the conclusion that has been reached by the only court that has faced the issue in a published opinion. Without any elaboration or any citations to the legislative sources referred to in this opinion, United States v. Hartman, 57 F.3d 670, 671 (8th Cir. 1995) (per curiam) has said succinctly: United States v. Sandoval, 1995 WL 656488 (1st Cir. Nov. 7) has reached the same conclusion in an unpublished per curiam decision.