United States v. Keys , 281 F. App'x 411 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 17, 2008
No. 07-60163
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BOBBY KEYS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
No. 1:06-CR-111-1
Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Bobby Keys appeals the sentences imposed after the revocation of his su-
pervised release on two prior separate convictions. He first argues that his right
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-60163
to be protected from double jeopardy was violated by the imposition of two sepa-
rate revocation sentences based on the same violation of his supervised release.
He did not raise that argument in the district court, so review is for plain error
only. See United States v. Odutayo, 406 F.3d 386, 392 (5th Cir. 2005); United
States v. Olano, 507 U.S. 725, 734 (1993).
The Fifth Amendment’s Double Jeopardy Clause protects against multiple
punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717
(1969). Post-revocation sanctions, such as a sentence imposed following the re-
vocation of supervised release or probation, are not “punishment” but rather part
of the penalty for the original conviction. Johnson v. United States, 529 U.S.
694, 700 (2000); United States v. DiFrancesco, 449 U.S. 117, 137 (1980). Conse-
quently, “there is no double jeopardy protection against revocation of probation
and the imposition of imprisonment.” DiFrancesco, 449 U.S. at 137.
In United States v. Dees, 467 F.3d 847, 853-54 (3d Cir. 2006), cert. denied,
128 S. Ct. 52 (2007), the court found no double jeopardy where the district court
had imposed three consecutive terms of imprisonment, based on the same con-
duct, after revocation of three concurrent terms of supervised release. Another
circuit held that a defendant who was on probation and supervised release for
separate offenses could be resentenced consecutively for the same conduct that
had led to his probation and supervised release violations. United States v.
Clark, 984 F.2d 319, 320 (9th Cir. 1993). In both cases, the courts focused on
jurisprudence that recognizes the principle that post-revocation penalties are
part of the original sentence and are not new punishment. Dees, 467 F.3d at
853; Clark, 984 F.2d at 321.
This court also has addressed the issue of multiple revocations in the con-
text of parole and probation revocations. In United States v. Whitney, 649 F.2d
296 (5th Cir. Unit B June 1981), the defendant had her parole and probation re-
voked based in part on the same violations and argued that that violated the
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No. 07-60163
Double Jeopardy Clause.1 We rejected the argument based on the determination
that the Double Jeopardy Clause did not apply to parole and probation revoca-
tion proceedings. Id. at 297. In United States v. Bubenik, No. 99-40153, 1999
WL 767257, at *1 (5th Cir. Sept. 8, 1999) (per curiam) (unpublished), the defen-
dant’s probation was revoked, in part, based on a positive drug test. He argued,
for the first time on appeal, that the revocation violated double jeopardy because
he already had spent time in a treatment center as a consequence of having test-
ed positive. Id. at *2. Applying the plain error standard of review, we held that
he had shown “no error at all . . . because the Double Jeopardy Clause does not
apply to probation-revocation proceedings.” Id.
This court makes no distinction between probation revocation and the re-
vocation of supervised release with respect to the double jeopardy analysis. See
United States v. Hinson, 429 F.3d 114, 118-119 (5th Cir. 2005); see also United
States v. Richardson, No. 07-60307, 2008 WL 687274, at *2 (5th Cir. Mar. 13,
2008) (per curiam) (unpublished). In light of the above cases, Keys has not
shown that the district court committed plain error in sentencing him following
the revocation of his supervised release. See Olano, 507 U.S. at 734.
Keys contends that the district court erred in sentencing him to 10 months
of imprisonment and an additional 12 months of supervised release after the re-
vocation of his supervised release on the money-order offense. This argument
is also reviewed for plain error. See id.. Although Keys couches his argument
as a challenge to his revocation sentence, his argument is in reality a challenge
to his original conviction. See Johnson, 529 U.S. at 700. A challenge to neither
the underlying sentence nor the underlying conviction is proper in an appeal
from the revocation of supervised release. See Hinson, 429 F.3d at 116 n.8;
1
The appellant initially had her parole revoked but was released after it was discovered
that her parole term had expired. See Whitney, 649 F.2d at 297 (noting facts set forth in prior
opinion, United States v. Whitney, 632 F.2d 654 (5th Cir. 1980)). The probation revocation
followed. Id.3
No. 07-60163
United States v. Simmons, 812 F.2d 561, 563 (9th Cir. 1987). Accordingly, Keys’s
argument is without merit.
Keys’s contention that the district court was prohibited by the terms of his
original plea agreement from imposing an additional term of supervised release
is flawed, because the terms of the agreement do not support his reasoning. His
theory that the district court lacked the statutory authority to impose an addi-
tional term of supervised release was rejected in United States v. Martinez, 496
F.3d 387, 390 (5th Cir.), cert. denied, 128 S. Ct. 728 (2007) (citing Johnson v.
United States, 529 U.S. 694, 703-13 (2000)). His argument that the court could
not impose consecutive terms of imprisonment was rejected in United States v.
Gonzalez, 250 F.3d 923, 927 (5th Cir. 2001).
AFFIRMED.
4