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

____________

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 during 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 supervised 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 supervised release. Regardless, Flagg admitted to later violations 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 supervised 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 determine 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 Commission 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 sentences 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 addressed 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 determined 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 established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable 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 statutory 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) (quoting 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 maximum in § 841(b)(1)(C).

Both the original indictment and judgment and commitment 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 sentencing 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 therefore 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 substantive 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, suggesting 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 unreasonable. 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