United States v. Rainey ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10195
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH RAY RAINEY, a/k/a Kenny Reine,
a/k/a John Rainy,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:93-CR-99-A
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October 23, 1996
Before POLITZ, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Kenneth Ray Rainey appeals from the imposition of a 20-month
prison sentence following revocation of his two-year term of
supervised release. Rainey contends that his sentence violated
the Double Jeopardy Clause and the Cruel and Unusual Punishment
Clause and was plainly unreasonable.
The Double Jeopardy Clause does not apply to supervised-
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 96-10195
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release-revocation proceedings. United States v. Marmolejo, 915
F.2d 981, 983 (5th Cir. 1990).
Rainey’s sentence did not exceed the statutory maximum
applicable to his underlying offense; nor did the sentence exceed
the two-year maximum permitted by the revocation statutes. See
18 U.S.C. §§ 1343, 3581(b)(5). Rainey’s punishment did not
constitute cruel and unusual punishment. United States v.
Celestine, 905 F.2d 59, 60 (5th Cir. 1990).
Rainey’s sentence was not plainly unreasonable. See United
States v. Giddings, 37 F.3d 1091, 1093 (5th Cir. 1994), cert.
denied, 115 S. Ct. 1323 (1995). Rainey’s unrepentant conduct
merited the imposition of a stiff prison sentence.
Finally, Rainey’s appeal is frivolous. Counsel has “no duty
to bring frivolous appeals; the opposite is true.” United States
v. Burleson, 22 F.3d 93, 95 (5th Cir.), cert. denied, 115 S. Ct.
283 (1994).
APPEAL DISMISSED. 5TH CIR. R. 42.2.