USA v. Ronald Sloan


UNPUBLISHED OPINION FILED. [09-50498 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 10/13/2010 for Appellant Ronald Sloan [09-50498]

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USA v. Ronald Sloan Doc. 0 Case: 09-50498 Document: 00511240785 Page: 1 Date Filed: 09/22/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-50498 S u m m a r y Calendar September 22, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. R O N A L D SLOAN, D e fe n d a n t -A p p e lla n t A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 1:95-CR-98-2 B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* R o n a ld Sloan, federal prisoner # 61276-080, appeals from the 50-month s e n te n c e imposed following the revocation of his term of supervised release r e s u lt in g from his guilty plea conviction for possession with intent to distribute c o c a in e . Sloan argues that the 50-month sentence imposed was outside the a u t h o r iz e d punishment range on revocation because his underlying offense was c h a r g e d as a violation of 21 U.S.C. 841(a), without any statement as to the d r u g quantity involved in the offense. He contends that the quantity of drugs 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-50498 Document: 00511240785 Page: 2 No. 09-50498 Date Filed: 09/22/2010 w a s a fact that must be alleged in the charging document and found to be proved b e y o n d a reasonable doubt by the finder of fact. Sloan asserts that therefore the m a x im u m statutory penalty was 20 years of imprisonment, resulting in the c a t e g o r iz a t io n of the underlying offense as a class C felony, which limited his r e v o c a t io n sentence to 24 months of imprisonment. S lo a n did not object to the revocation sentence in the district court and, t h u s , review is for plain error. Puckett v. United States, 129 S. Ct. 1423, 1429 (2 0 0 9 ). A defendant may not use the appeal from a judgment revoking a term o f supervised release to challenge directly or collaterally his underlying c o n v ic t io n or original sentence. United States v. Hinson, 429 F.3d 114, 116 (5th C ir . 2005). Thus, Sloan is not entitled to challenge the validity of his original s e n te n c e . See id. I n s o fa r as Sloan argues that the sentence is invalid because there were no fa c t fin d in g s to substantiate the classification of his sentence, the court rejected a similar argument in Hinson, holding that the defendant could not collaterally a t t a c k the underlying sentence based on there being no factfindings regarding t h e sentence by the jury and no admissions to those facts by the defendant at the t im e of his guilty plea. Id. F u r t h e r , Sloan acknowledges that his original 1996 plea and sentence w e r e imposed prior to the issuance of the opinion in Apprendi v. New Jersey, 530 U .S . 466 (2000). At the time of Sloan's initial sentencing, the law did not require t h a t the drug quantity be specified in the indictment and proved to a jury as an e le m e n t of the offense. Thus, Apprendi did not render Sloan's sentence illegal. S e e United States v. Moody, 277 F.3d 719, 721 (5th Cir. 2001). If an initial sentence was legal when imposed, the revocation sentence a r is in g from that sentence is also legal. United States v. Willis, 563 F.3d 168, 1 7 0 (5th Cir. 2009). Further, even if the initial sentence was illegal, as p r e v io u s ly stated, Sloan may not use a challenge to his revocation sentence as 2 Case: 09-50498 Document: 00511240785 Page: 3 No. 09-50498 Date Filed: 09/22/2010 a vehicle to challenge the initial sentence. See Hinson, 429 F.3d at 116; Moody, 2 7 7 F.3d at 721. T h e r e fo r e , the statutory maximum sentence that the district court could h a v e imposed upon the revocation of Sloan's supervised release was 60 months o f imprisonment. Because the 50-month sentence was a statutorily authorized s e n te n c e , the district court did not plainly err in imposing the revocation s e n te n c e . See Puckett, 129 S. Ct. at 1429. The sentence is AFFIRMED. 3

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