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United States v. Tony Buck ( 2019 )


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  •      Case: 19-60107      Document: 00515218285         Page: 1    Date Filed: 12/02/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-60107                        December 2, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TONY BUCK,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:18-CR-147-1
Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
A jury convicted Defendant-Appellant Tony Buck of possessing
contraband in prison, specifically, a cell phone, in violation of
    18 U.S.C. § 1791
    (a)(2). The district court sentenced Buck to eight months of imprisonment
and imposed a one-year term of supervised release. Buck timely filed a notice
of appeal.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 19-60107    Document: 00515218285     Page: 2     Date Filed: 12/02/2019
No. 19-60107
Buck maintains that his conviction under § 1791(a)(2) violates his right
to be free from double jeopardy because the Bureau of Prisons has already
disciplined him for the same conduct. According to Buck, he lost 41 days of
“good time” credits, lost 6 months of phone privileges, and spent 15 days in
administrative segregation.     Whether a prosecution violates the Double
Jeopardy Clause of the Fifth Amendment is a question of law which this court
reviews de novo. United States v. Delgado,
    256 F.3d 264
    , 270 (5th Cir. 2001).
Buck acknowledges in a footnote to his brief that this court’s decision in
Gilchrist v. United States,
    427 F.2d 1132
     (5th Cir. 1970) (per curiam), “does not
support” his double jeopardy argument. In Gilchrist, this court explicitly held
that “the double jeopardy provision of the Fifth Amendment is not violated
because a prisoner is subjected to discipline by prison authorities for violating
prison regulations and is also prosecuted in the district court in a criminal
action based upon the same acts.”
    427 F.2d at 1132
     (citations omitted); see also
United States v. Galan,
    82 F.3d 639
    , 640 (5th Cir. 1996).
Notwithstanding Gilchrist, Buck contends that, under the factors set out
in the Supreme Court’s subsequent decision in Hudson v. United States,
    522 U.S. 93
     (1997), his prison discipline constitutes a criminal punishment, and his
prosecution under § 1791(a)(2) violated the Double Jeopardy Clause. He does
not, however, cite a single case in which this court has held, post-Hudson, that
prison discipline bars further criminal prosecution under the Double Jeopardy
Clause. In an unpublished decision, however, this court noted that “[w]e, as
well as other courts, have held, pre-and post-Hudson . . . that disciplinary
sanctions imposed by prison authorities for infractions of prison regulations do
not bar a subsequent criminal prosecution.” United States v. Daniel, No. 06-
60822,
    2007 WL 837095
    , at *3 (5th Cir. Mar. 15, 2007) (unpublished).
Based on the foregoing, the judgment of the district court is AFFIRMED.
2