United States v. Conyers , 284 F. App'x 19 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4683
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC CONYERS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:07-cr-00057-FDW)
Submitted: June 4, 2008 Decided: July 11, 2008
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph L. Bell, Jr., BATTS, BATTS & BELL, LLP, Rocky Mount, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Adam Morris, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric Conyers appeals the district court’s sentence of
thirty-seven months’ imprisonment following its revocation of his
supervised release. Conyers asserts that this term of
incarceration exceeds the statutory maximum established by the
classification of his underlying offense. Because Conyers neither
challenged his underlying conviction and sentence nor objected to
his current sentence during the revocation hearing, this court’s
review is for plain error. To meet the plain error standard:
(1) there must be an error; (2) the error must be plain; and
(3) the error must affect substantial rights. United States v.
Olano, 507 U.S. 725, 732-34 (1993). If the three elements of the
plain error standard are met, this court may exercise its
discretion to notice the error only “if the error seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. at 736 (internal quotation marks and citation
omitted). Finding no error, we affirm.
In 1994, Conyers pled guilty to one count of possession
with intent to distribute a quantity of heroin, in violation of 21
U.S.C. §§ 841(a)(1), 846 (2000). The district court sentenced
Conyers to 151 months’ imprisonment, followed by five years of
supervised release. However, following Conyers’ release, he
violated the terms of that supervised release, for which the
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district court imposed a term of thirty-seven months’
incarceration.
On appeal, Conyers essentially raises an argument under
Apprendi v. New Jersey, 530 U.S. 466 (2000), and alleges that
because the underlying indictment failed to include a drug amount,
the thirty-seven months’ incarceration the district court imposed
exceeds the maximum of two years’ imprisonment authorized for
violations of a term of supervised release imposed as punishment
for a Class C felony. We disagree. Conyers’ challenge incorrectly
asserts he was originally sentenced for committing a Class C
felony. Conyers’ presentence report, to which no objections were
filed, indicates a sufficient factual basis to support a sentence
in accordance with § 841(b)(1)(A), a Class A felony.
Moreover, Conyers is foreclosed from raising an Apprendi
challenge to the classification of his offense under the law of the
case doctrine. The law of the case doctrine, absent exceptional
circumstances, forecloses relitigation of issues expressly or
impliedly decided at a prior stage of a proceeding. See United
States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). The record
indicates that Conyers pled guilty to the Class A felony of
§ 841(b)(1)(A) in 1994, and failed to appeal the resulting
conviction and sentence.
Additionally, we note that circuit courts that have
squarely addressed the issue have held that Apprendi is not
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retroactively applicable in a supervised release revocation
proceeding. See United States v. Warren, 335 F.3d 76 (2d Cir.
2003); see also United States v. Flagg, 481 F.3d 946 (7th Cir.
2007). In Flagg, the Seventh Circuit reasoned that a party should
not be able “to use the alternative vehicle of the revocation
proceeding to challenge his underlying conviction and sentence when
this challenge is forbidden to him on collateral review.” Flagg,
481 F.3d at 950. Likewise, this court has held that the rule
announced in Apprendi is not retroactively applicable to cases on
collateral review. United States v. Sanders, 247 F.3d 139, 151
(4th Cir. 2001).
Finally, Conyers alleges that because the 1994 indictment
failed to include the drug quantity, this court lacks jurisdiction.
We conclude that Conyers has waived this argument by pleading
guilty. A guilty plea effects a waiver of all non-jurisdictional
defects in the indictment. Tollett v. Henderson, 411 U.S. 258, 267
(1973) (stating that “when a criminal defendant has solemnly
admitted in open court that he is in fact guilty of the offense
with which he is charged, he may not thereafter raise independent
claims relating to the deprivation of constitutional rights that
occurred prior to the entry of the guilty plea”); United States v.
Willis, 992 F.2d 489, 490 (4th Cir. 1993) (same). Defects in the
indictment are not jurisdictional. United States v. Cotton, 535
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U.S. 625, 631 (2002). Conyers’ valid guilty plea therefore waives
his argument that the indictment was defective.
Accordingly, we affirm Conyers’ sentence. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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