UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-4683



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


ERIC CONYERS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:07-cr-00057-FDW)


Submitted:   June 4, 2008                  Decided:   July 11, 2008


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joseph L. Bell, Jr., BATTS, BATTS & BELL, LLP, Rocky Mount, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Adam Morris, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Eric Conyers appeals the district court’s sentence of

thirty-seven months’ imprisonment following its revocation of his

supervised      release.        Conyers      asserts      that     this   term   of

incarceration exceeds the statutory maximum established by the

classification of his underlying offense.               Because Conyers neither

challenged his underlying conviction and sentence nor objected to

his current sentence during the revocation hearing, this court’s

review is for plain error.            To meet the plain error standard:

(1) there must be an error; (2) the error must be plain; and

(3) the error must affect substantial rights.                    United States v.

Olano, 

, 732-34 (1993).             If the three elements of the

plain   error      standard   are   met,     this   court    may     exercise    its

discretion    to    notice    the   error    only   “if    the   error    seriously

affect[s] the fairness, integrity or public reputation of judicial

proceedings.”       Id. at 736 (internal quotation marks and citation

omitted).    Finding no error, we affirm.

            In 1994, Conyers pled guilty to one count of possession

with intent to distribute a quantity of heroin, in violation of 21

U.S.C. §§ 841(a)(1), 846 (2000).               The district court sentenced

Conyers to 151 months’ imprisonment, followed by five years of

supervised    release.        However,      following     Conyers’    release,   he

violated the terms of that supervised release, for which the




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district    court     imposed     a     term     of        thirty-seven       months’

incarceration.

           On appeal, Conyers essentially raises an argument under

Apprendi v. New Jersey, 

 (2000), and alleges that

because the underlying indictment failed to include a drug amount,

the thirty-seven months’ incarceration the district court imposed

exceeds the maximum of two years’ imprisonment authorized for

violations of a term of supervised release imposed as punishment

for a Class C felony. We disagree. Conyers’ challenge incorrectly

asserts he was originally sentenced for committing a Class C

felony. Conyers’ presentence report, to which no objections were

filed, indicates a sufficient factual basis to support a sentence

in accordance with § 841(b)(1)(A), a Class A felony.

           Moreover, Conyers is foreclosed from raising an Apprendi

challenge to the classification of his offense under the law of the

case doctrine.      The law of the case doctrine, absent exceptional

circumstances,     forecloses    relitigation         of    issues    expressly    or

impliedly decided at a prior stage of a proceeding. See United

States v. Bell, 

, 66 (4th Cir. 1993).                             The record

indicates that Conyers pled guilty to the Class A felony of

§   841(b)(1)(A)    in   1994,   and    failed    to       appeal    the    resulting

conviction and sentence.

           Additionally, we note that circuit courts that have

squarely   addressed     the   issue    have   held        that   Apprendi    is   not


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retroactively    applicable   in   a   supervised   release   revocation

proceeding.     See United States v. Warren, 

 (2d Cir.

2003); see also United States v. Flagg, 

 (7th Cir.

2007).    In Flagg, the Seventh Circuit reasoned that a party should

not be able “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.”        Flagg,

481 F.3d at 950.      Likewise, this court has held that the rule

announced in Apprendi is not retroactively applicable to cases on

collateral review.    United States v. Sanders, 

, 151

(4th Cir. 2001).

            Finally, Conyers alleges that because the 1994 indictment

failed to include the drug quantity, this court lacks jurisdiction.

We conclude that Conyers has waived this argument by pleading

guilty.    A guilty plea effects a waiver of all non-jurisdictional

defects in the indictment. Tollett v. Henderson, 

, 267

(1973) (stating that “when a criminal defendant has solemnly

admitted in open court that he is in fact guilty of the offense

with which he is charged, he may not thereafter raise independent

claims relating to the deprivation of constitutional rights that

occurred prior to the entry of the guilty plea”); United States v.

Willis, 

, 490 (4th Cir. 1993) (same).        Defects in the

indictment are not jurisdictional.         United States v. Cotton, 535




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U.S. 625, 631 (2002).   Conyers’ valid guilty plea therefore waives

his argument that the indictment was defective.

          Accordingly, we affirm Conyers’ sentence.    We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

                                                          AFFIRMED




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