                     NONPRECEDENTIAL DISPOSITION
                       To be cited only in accordance with
                               Fed. R. App. P. 32.1




           United States Court of Appeals
                           For the Seventh Circuit
                           Chicago, Illinois 60604


                             Argued May 23, 2007
                           Decided September 6, 2007


                                     Before

                  Hon. FRANK H. EASTERBROOK, Chief Judge

                  Hon. WILLIAM J. BAUER, Circuit Judge

                  Hon. DANIEL A. MANION, Circuit Judge


No. 06-3694                                   Appeal from the United States
                                              District Court for the Central
UNITED STATES OF AMERICA,                     District of Illinois
              Plaintiff-Appellee,
                                              No. 94 CR 30008
      v.
                                              Jeanne E. Scott, Judge.
KENNETH BELL,
           Defendant-Appellant.


                                   ORDER

       Kenneth Bell violated the conditions of his supervised release by testing
positive for drugs. The district court revoked Bell’s supervised release and
sentenced him to twenty months’ imprisonment followed by one year of supervised
release. Bell appeals his term of imprisonment, and we affirm.
No. 06-3694                                                                      Page 2



                                           I.

       In May 1994, Kenneth Bell, a convicted felon, attempted to sell a rifle to an
undercover agent. He pleaded guilty to being a felon in possession of a firearm, and
on January 30, 1995, he was sentenced to 156 months’ imprisonment followed by
sixty months of supervised release. After serving his sentence he was released on
October 28, 2005. While on supervised release, Bell submitted five separate urine
samples which all tested positive for either marijuana, cocaine, or both substances.
The positive drug tests violated the terms of Bell’s supervised release. During a
subsequent hearing, Bell admitted committing these violations. However, Bell
objected to the probation office’s recommendation that the district court apply a
twenty-month minimum mandatory penalty pursuant to the version of 18 U.S.C. §
3583(g) that was in effect when he committed the crime. This statute required that
a defendant who violated the terms of his supervised release be subject to a term of
imprisonment not less than one-third of the term of supervised release. Although
Bell’s advisory Guideline range was twelve to eighteen months, the district court
revoked Bell’s supervised release and imposed a sentence of twenty months’
imprisonment (which was one-third of the original sixty-month term of supervised
release) to be followed by an additional one year of supervised release. The district
court concluded that the mandatory minimum applied, but stated that even without
the mandatory minimum, the twenty months would be warranted because of the
number of violations and the extent of Bell’s drug problem.

      Bell appeals the imposition of a mandatory minimum term of imprisonment,
arguing that an amended version of the statute applies that does not require a
mandatory minimum term of imprisonment.

                                           II.

        At the time Bell committed his offense, 18 U.S.C. § 3583(g) required that if a
defendant violated the terms of supervised release by unlawfully using a controlled
substance, he would receive a mandatory minimum term of imprisonment equal to
one-third of the original term of supervised release. 18 U.S.C. § 3583(g) (1988 &
Supp. IV 1993), amended by Pub.L. 103-322, § 110505(3) (codified at 18 U.S.C. §
3583(g) (1994)). However, before Bell was sentenced, Congress repealed subsection
(g)’s requirement of a mandatory minimum sentence. Pub.L. 103-322, § 110505(3).


       Bell asserts that the mandatory minimum sentencing requirement for
violations of supervised release that was in effect at the time of his original offense
was repealed before he was sentenced. Specifically, Bell contends that the district
No. 06-3694                                                                    Page 3



court erred in concluding that the repeal was not retroactive, because it was part of
the same amendment that included an expressly retroactive safety valve
restrictions on mandatory minimums. Bell further asserts that by not applying the
amended version of the statute, the district court violated international law. In
response, the government contends that the law that was in effect at the time of the
underlying crime is to be applied even for subsequent violations of supervised
release. The government further relies upon 1 U.S.C. §109 which provides that

      [t]he repeal of any statute shall not have the effect to release or extinguish
      any penalty, forfeiture, or liability incurred under such statute, unless the
      repealing Act shall so expressly provide, and such statute shall be treated as
      still remaining in force for the purpose of sustaining any proper action or
      prosecution for the enforcement of such penalty, forfeiture, or liability.

In reply, Bell argues that because the mandatory minimum penalty was repealed by
the time Bell was originally sentenced and 1 U.S.C. §109 only saves penalties and
liabilities which have been incurred prior to the repeal of a statute, the mandatory
minimum penalty does not apply to him.

       We need not delve into these issues, however, because the district court
stated that “20 months is an appropriate sentence, even without the one-third
requirement,” that would result if the mandatory minium sentence for supervised
release violations of 18 U.S.C. § 3853(g) applied to Bell. Therefore, for the purposes
of Bell’s sentence, the application of the repeal of the mandatory minimum is
irrelevant.

       We turn then to the appropriateness of a sentence of twenty months’
imprisonment following Bell’s revocation of supervised release. Prior to the U.S.
Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), the
standard for reviewing a sentence following the revocation of supervised release
was whether it was “plainly unreasonable.” This required us to consider the criteria
set forth in 18 U.S.C. § 3583. Under that standard, the district court was required
“to consider the policy statements set forth by the Sentencing Commission in
U.S.S.G. Chapter Seven and the sentencing factors set forth in 18 U.S.C. § 3553(a).”
United States v. Flagg, 481 F.3d 946, 949 (7th Cir. 2007) (citations omitted). This
circuit has not yet determined whether as a result of Booker the plainly
unreasonable standard has been replaced by Booker’s reasonableness standard. Id.
As discussed below, however, we conclude that Bell’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,” therefore
No. 06-3694                                                                    Page 4



we need not reach any determinations about the standard of review for sentences
imposed following the revocation of supervised release post-Booker. Id.

       The sentenced imposed is two months greater than the high end of the
Guideline range of eighteen months. In arriving at the sentence imposed, the
district court reviewed Bell’s file and violation report, as well as considered the
arguments and statements made by counsel at the sentencing hearing.
Additionally, the district court considered the number of violations Bell had
sustained as well the extent of Bell’s substance abuse history and concluded that a
twenty- month term of imprisonment was warranted to “give [Bell] the chance in
the prison system to participate in the intensive drug treatment program.” In light
of these considerations, the district court properly conducted its sentencing function
by considering the facts that would be relevant under 18 U.S.C. § 3553(a) and
imposed a sentence that is neither plainly unreasonable nor unreasonable. See
United States v. Sachsenmaier, 491 F.3d 680, 684-85 (7th Cir. 2007).

                                         III.

      Because the district court appropriately imposed a twenty-month term of
imprisonment, we AFFIRM Bell’s sentence.
