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.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-99-CR-269-ALL-SS ------------------- 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,

(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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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,

.

Arellano also contends that sentence must be vacated because

the court failed to consider the facts set forth in

(a). “Implicit consideration of the [18 U.S.C.] § 3553

factors is sufficient.” United States v. Teran,

(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,

.

Arellano also asserts that the district court erred in

sentencing him to more than 24 months’ imprisonment under Apprendi

v. New Jersey,

(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

(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 ___,

(5th Cir. Dec. 21, 2001)(No. 00-51242).

Moreover, as

(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,

. Consequently, Arellano’s sentence is

AFFIRMED.

3