United States v. Flagg, Abraham P.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3092
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ABRAHAM P. FLAGG, also known as ABRAHAM WILLS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 93 CR 40063—J. Phil Gilbert, Judge.
____________
ARGUED FEBRUARY 6, 2007—DECIDED MARCH 23, 2007
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Before KANNE, WOOD, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. Abraham Flagg was sentenced
to 36 months’ imprisonment for violating the terms of his
supervised release. Flagg argues that his sentence was
imposed in violation of his Sixth Amendment rights as
explained in Apprendi v. New Jersey, 530 U.S. 466 (2000),
and its progeny. He also argues that the sentence is
unreasonable. We affirm.
I. HISTORY
On February 3, 1994, Flagg pled guilty, pursuant to a
written plea agreement, to one count of conspiracy to
2 No. 06-3092
distribute cocaine and cocaine base in violation of 21
U.S.C. § 846, and one count of distributing cocaine base in
violation of 21 U.S.C. § 841(a)(1). In the written plea
agreement, Flagg and the government agreed that “the
total quantity of cocaine base in this case was at least 500
grams but less than 1500 grams.” R. 90 at pg. 6. Flagg’s
relevant conduct and prior criminal history resulted in a
sentencing range of 360 months’ to life imprisonment.
However, commensurate with the 1994 plea agreement,
the government agreed not to file a 21 U.S.C. § 851 notice
of two or more prior drug convictions and also agreed to
move for a U.S.S.G. § 5K1.1 departure. The district court
sentenced Flagg to concurrent sentences of 180 months’
imprisonment and sixty months of supervised release
on each count.
Flagg began serving his supervised release on February
7, 2006. Flagg immediately violated the terms of his
supervised release by: (1) admitting to his probation officer
on February 8th that he had used cocaine on February 7th;
(2) failing to report to substance abuse counseling dur-
ing February and March 2006; (3) failing to call his
probation officer regarding random drug testing on seven
occasions in March 2006; (4) frequenting a place where
controlled substances were sold on May 1st; and (5) being
in the company of others engaged in criminal activity on
May 1st.
Flagg erroneously believed that he would only face a
maximum of one additional year of imprisonment for his
violations of supervised release, and his apparent intent
was to choose one year of prison over five years of super-
vised release. Flagg explained his preference for prison as
being based on his belief that he would be more likely to
gain custody of his fourteen year old son once he was no
longer under any type of sentence. Thus, the record is
unclear as to whether Flagg actually used cocaine on
February 7th or merely made the claim to the probation
No. 06-3092 3
officer on February 8th to immediately violate his super-
vised release. Regardless, Flagg admitted to later viola-
tions in March, April and May because he perceived no
reason to comply with his release terms. Flagg stated at
his revocation hearing that he had no general desire to be
on supervised release unless it would help him reduce his
prison sentence. The district court sentenced Flagg to
36 months’ imprisonment without any additional super-
vised release.
II. ANALYSIS
Prior to the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), “[t]his court review[ed] a
sentence imposed following revocation of a defendant’s
supervised release to ascertain whether it was ‘plainly
unreasonable.’ ” United States v. Salinas, 365 F.3d 582,
588 (7th Cir. 2004) (citing United States v. McClanahan,
136 F.3d 1146, 1149 (7th Cir. 1998); United States v.
Marvin, 135 F.3d 1129, 1136 (7th Cir. 1998)). “To deter-
mine whether the sentence was plainly unreasonable,
we [consider] . . . the standards set out in 18 U.S.C.
§ 3583.” United States v. Harvey, 232 F.3d 585, 587 (7th
Cir. 2000) (citing United States v. Doss, 79 F.3d 76, 79 (7th
Cir. 1996)). The district court was also required to consider
the policy statements set forth by the Sentencing Commis-
sion in U.S.S.G. Chapter Seven and the sentencing factors
set forth in 18 U.S.C. § 3553(a). United States v. Carter,
408 F.3d 852, 854 (7th Cir. 2005) (citations omitted). “We
[then] review[ed] a district court’s decision to revoke a
term of supervised release for an abuse of discretion . . .
[but] [q]uestions of statutory interpretation . . . [were]
reviewed de novo.” United States v. Young, 41 F.3d 1184,
1186 (7th Cir. 1994) (citing Erickson v. Trinity Theatre,
Inc., 13 F.3d 1061, 1067 (7th Cir. 1994); United States v.
Dillard, 910 F.2d 461, 464 (7th Cir. 1990)).
4 No. 06-3092
Several circuits have concluded that an additional
consequence of Booker’s remedial decision was to replace
the “plainly unreasonable” standard of review with the
reasonableness standard now utilized in reviewing sen-
tences post-Booker, United States v. Bungar, ___ F.3d ___,
No. 05-5519, 2007 WL 646162, at *2 n.1 (3d Cir. Mar. 5,
2007); United States v. Miqbel, 444 F.3d 1173, 1176 n.5
(9th Cir. 2006); United States v. Tyson, 413 F.3d 824, 825
(8th Cir. 2005) (per curiam); United States v. Tedford,
405 F.3d 1159, 1161 (10th Cir. 2005); United States v.
Fleming, 397 F.3d 95, 99 (2d Cir. 2005), but the validity
of this conclusion has been questioned by both the Fourth
and Sixth Circuits. United States v. Crudup, 461 F.3d 433,
435-39 (4th Cir. 2006); United States v. Johnson, 403 F.3d
813, 816-17 (6th Cir. 2005). We have not squarely ad-
dressed this issue and need not resolve it today as we
conclude that Flagg’s sentence is appropriate regardless
of whether we review it under the “plainly unreasonable”
standard existing prior to Booker or the reasonableness
standard of post-Booker.
“To revoke a defendant’s supervised release under 18
U.S.C. § 3583(e)(3), the district court must find by a
preponderance of the evidence that the defendant violated
the terms of his supervised release.” United States v.
Goad, 44 F.3d 580, 585 (7th Cir. 1995). Section 3583(e)(3)
establishes maximum prison sentences that the district
court can impose of no more than: (1) five years for a
Class A felony, (2) three years for a Class B felony, (3) two
years for a Class C or D felony, or (4) one year in any
other case. Felonies are classified pursuant to 18 U.S.C.
§ 3559 based on their maximum term of imprisonment
unless otherwise classified within the specific statute
making the conduct unlawful. In general, a Class A felony
has a maximum penalty of life imprisonment or death, a
Class B felony is twenty-five years or more imprisonment,
No. 06-3092 5
and a Class C felony is at least ten years but less than
twenty-five years imprisonment.
In determining Flagg’s prison sentence for violating the
terms of his supervised release, the district court deter-
mined that Flagg was originally sentenced pursuant to
21 U.S.C. § 841(b)(1)(A). The maximum penalty for
§ 841(b)(1)(A) is life imprisonment making it a Class A
felony and therefore Flagg faced a maximum sentence of
five years for violating the terms of his supervised release.
Flagg argues that his original conviction and sentence
in 1994 under § 841(b)(1)(A) was imposed in violation of
Apprendi and therefore the only permissible prison
sentence for his violation of supervised release is one year
based on § 841(b)(1)(C), a Class C felony.
In 1994, six years before Apprendi, when Flagg was
indicted, pled guilty and sentenced pursuant to 18 U.S.C.
§§ 841, 846, the determination of drug quantity and type
were sentencing issues to be found by the district court
by a preponderance of the evidence. United States v.
Knight, 342 F.3d 697, 710 (7th Cir. 2003). Apprendi and
the line of cases following it, however, explained that
under the Sixth Amendment, “any fact (other than a prior
conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts estab-
lished by a plea of guilty or a jury verdict must be admit-
ted by the defendant or proved to a jury beyond a reason-
able doubt.” United States v. Paulus, 419 F.3d 693, 697
(7th Cir. 2005) (quoting United States v. Booker, 543 U.S.
220, 244 (2005)). The result was that post-Apprendi “drug
type and amount ‘sufficient to trigger the higher stat-
utory maximum of §§841(b)(1)(A) or (B) [must] be
charged in the indictment and found by the jury’ ” beyond
a reasonable doubt or admitted by the defendant. United
States v. Macedo, 406 F.3d 778, 786 (7th Cir. 2005) (quot-
ing United States v. Mietus, 237 F.3d 866, 874 (7th Cir.
6 No. 06-3092
2001)). Under today’s law, failure to meet the Apprendi
rule results in limiting a sentence to the statutory maxi-
mum in § 841(b)(1)(C).
Both the original indictment and judgment and com-
mitment order from 1994 do not reference § 841(b)(1), and
instead only reference § 841(a)(1) and § 846. However, in
the 1994 plea colloquy, the district court explained to
Flagg that he faced a mandatory minimum sentence of
ten years’ imprisonment with a statutory maximum
sentence of life imprisonment. This is the higher sentenc-
ing range set forth in § 841(b)(1)(A). Thus, the record of
his change of plea proceeding demonstrates that Flagg
pled guilty to and therefore was sentenced under
§ 841(b)(1)(A).
Flagg’s Apprendi argument ignores the fact that his
Apprendi rights were not violated by the original sentence
in 1994 because he admitted to the conduct and there-
fore the district court did not engage in impermissible
judicial fact finding. Flagg admitted in the plea agreement
that he was responsible for at least 500 grams but less
than 1500 grams of cocaine base. His admission in 1994
implicated § 841(b)(1)(A) by placing him above the 50
grams of cocaine base threshold and therefore there was
no violation in imposing a sentence under § 841(b)(1)(A).
Even if Flagg’s Apprendi rights were violated by his 1994
conviction and sentence, we conclude that we would be
unable to address this defect through his present appeal.
The proper method for challenging a conviction and
sentence is through direct appeal or collateral review, not
a supervised release revocation proceeding. United States
v. Thomas, 934 F.2d 840, 846 (7th Cir. 1991); see United
States v. Hinson, 429 F.3d 114, 116 n.8 (5th Cir. 2005)
(citing United States v. Moody, 277 F.3d 719, 721 (5th Cir.
2001)); United States v. Wyatt, 102 F.3d 241, 245 (7th Cir.
1996) (“[Supervised release is part of the defendant’s
No. 06-3092 7
original sentence . . . and it is the original sentence that
is executed when the defendant is returned to prison after
a violation of the terms of his release.”) (internal citations
and quotations omitted). We have previously held that
Apprendi is not applied retroactively on collateral review.
Berkey v. United States, 318 F.3d 768, 774 (7th Cir. 2003)
(citing Curtis v. United States, 294 F.3d 841, 842 (7th Cir.
2002)). We cannot allow Flagg 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. Cf. Heck v.
Humphrey, 512 U.S. 477, 484 (1994) (prohibiting “a
collateral attack on [a] conviction through the vehicle of
a civil suit.”).
Perhaps recognizing his conflict with the requirements
of collateral review, Flagg’s final argument is that sub-
stantive due process or the Rule of Lenity should be
applied to his benefit in this case. However, we see no
reason, and more importantly no legal authority, sug-
gesting that we alter the requirement that an attack to
a conviction and sentence must be made on direct or
collateral review, or that we alter the rules governing
retroactivity of legal principles on collateral review.
Flagg’s argument is essentially that the outcome in his
case is so unfair that we are compelled to jettison entire
areas of the law. Furthermore, Flagg’s requested relief
would effectively require us to repudiate several decisions
of the Supreme Court. A decision resulting in this type
of change can only come from our Superiors.
Finally, we conclude that the district court’s decision to
impose a sentence of 36 months’ imprisonment for Flagg’s
violations was not plainly unreasonable nor was it unrea-
sonable. The record demonstrates that the district court
properly considered the Guidelines’ policy statements
and the § 3553(a) factors. The sentence imposed by the
district court is consistent with previous sentences af-
8 No. 06-3092
firmed by this court. See Carter, 408 F.3d at 854-55 (citing
Salinas, 356 F.3d at 589; Harvey, 232 F.3d at 585).
III. CONCLUSION
The defendant’s sentence is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-23-07