     Case: 09-50498     Document: 00511240785          Page: 1    Date Filed: 09/22/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         September 22, 2010
                                     No. 09-50498
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RONALD SLOAN,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:95-CR-98-2


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Ronald Sloan, federal prisoner # 61276-080, appeals from the 50-month
sentence imposed following the revocation of his term of supervised release
resulting from his guilty plea conviction for possession with intent to distribute
cocaine. Sloan argues that the 50-month sentence imposed was outside the
authorized punishment range on revocation because his underlying offense was
charged as a violation of 21 U.S.C. § 841(a), without any statement as to the
drug 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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        Date Filed: 09/22/2010
                                 No. 09-50498

was a fact that must be alleged in the charging document and found to be proved
beyond a reasonable doubt by the finder of fact. Sloan asserts that therefore the
maximum statutory penalty was 20 years of imprisonment, resulting in the
categorization of the underlying offense as a class C felony, which limited his
revocation sentence to 24 months of imprisonment.
      Sloan did not object to the revocation sentence in the district court and,
thus, review is for plain error. Puckett v. United States, 129 S. Ct. 1423, 1429
(2009). A defendant may not use the appeal from a judgment revoking a term
of supervised release to challenge directly or collaterally his underlying
conviction or original sentence. United States v. Hinson, 429 F.3d 114, 116 (5th
Cir. 2005). Thus, Sloan is not entitled to challenge the validity of his original
sentence. See id.
      Insofar as Sloan argues that the sentence is invalid because there were no
factfindings to substantiate the classification of his sentence, the court rejected
a similar argument in Hinson, holding that the defendant could not collaterally
attack the underlying sentence based on there being no factfindings regarding
the sentence by the jury and no admissions to those facts by the defendant at the
time of his guilty plea. Id.
      Further, Sloan acknowledges that his original 1996 plea and sentence
were 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
that the drug quantity be specified in the indictment and proved to a jury as an
element of the offense. Thus, Apprendi did not render Sloan’s sentence illegal.
See United States v. Moody, 277 F.3d 719, 721 (5th Cir. 2001).
      If an initial sentence was legal when imposed, the revocation sentence
arising from that sentence is also legal. United States v. Willis, 563 F.3d 168,
170 (5th Cir. 2009).    Further, even if the initial sentence was illegal, as
previously stated, Sloan may not use a challenge to his revocation sentence as



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                                No. 09-50498

a vehicle to challenge the initial sentence. See Hinson, 429 F.3d at 116; Moody,
277 F.3d at 721.
      Therefore, the statutory maximum sentence that the district court could
have imposed upon the revocation of Sloan’s supervised release was 60 months
of imprisonment. Because the 50-month sentence was a statutorily authorized
sentence, the district court did not plainly err in imposing the revocation
sentence. See Puckett, 129 S. Ct. at 1429. The sentence is AFFIRMED.




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