IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50820
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PHILLIP ARELLANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-99-CR-269-ALL-SS
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February 6, 2002
Before DUHÉ, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:1
Phillip Arellano appeals the thirty-month sentence that he
received upon revocation of his supervised release term. Because
there are no applicable guidelines for sentencing after revocation
of probation, see U.S.S.G. Ch. 7, Pt. A., 1, this court will uphold
Arellano’s sentence unless it is in violation of law or plainly
unreasonable. See United States v. Pena, 125 F.3d 285, 287 (5th
Cir. 1997).
Arellano first asserts that his sentence was unreasonably
excessive because it exceeded the proposed guideline sentence
1
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that this opinion should not be published and is not precedent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.
range. As the guidelines for supervised release are
recommendations only, the court has broad discretion to impose a
term of imprisonment that was not limited by the recommended
guideline range. Pena, 125 F.3d at 287.
Arellano also contends that sentence must be vacated because
the court failed to consider the facts set forth in 18 U.S.C.
§ 3553(a). “Implicit consideration of the [18 U.S.C.] § 3553
factors is sufficient.” United States v. Teran, 98 F.3d 831, 836
(5th Cir. 1996). The court implicitly considered the relevant
factors in imposing Arellano’s sentence.
Arellano maintains that the sentence was plainly unreasonable.
Because the sentence imposed was within the statutory range of
punishment, it was not plainly unreasonable. See Pena, 125 F.3d at
286.
Arellano also asserts that the district court erred in
sentencing him to more than 24 months’ imprisonment under Apprendi
v. New Jersey, 530 U.S. 466 (2000). He asserts that because the
indictment did not allege a drug quantity, his original offense was
in fact a Class C felony, requiring a maximum term of imprisonment
of two years upon revocation of supervised release under 18 U.S.C.
§ 3583(e)(3). As Arellano has not challenged the validity of his
indictment, either on direct appeal or through collateral review,
he cannot do so now. See United States v. Moody, ___ F.3d ___,
2001 WL 1643920 at *1 (5th Cir. Dec. 21, 2001)(No. 00-51242).
Moreover, as 18 U.S.C. § 3583(e)(3) requires the district court to
consider the statute under which the original sentence was imposed
2
for determining the sentencing under supervised release, the
thirty-month sentence received by Arellano was appropriate. Moody,
2001 WL 1643920 at *1. Consequently, Arellano’s sentence is
AFFIRMED.
3