*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 10/16/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 96-5064

v. (N.D. Oklahoma)

WAYMOND C. WATKINS,

Defendant - Appellant.

(D.C. No. CV-96-65-K) 

ORDER AND JUDGMENT*

Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

Waymond Clinton Watkins appeals the district court’s denial of his motion to

vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. He contends that
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the district court erred in finding that the sale of his property to satisfy his court ordered

restitution did not violate the Fifth Amendment’s Double Jeopardy Clause. We affirm.

Watkins pled guilty to one count of conspiring to commit mail fraud by submitting

malredeemed manufacturers’ discount coupons, in violation of 18 U.S.C. § 371. On

February 7, 1992, the district court sentenced him to eight months’ incarceration followed

by three years’ supervised release. Appellee’s App., Tab 2 at 2-3. The court also ordered

Watkins to pay $150,000 in restitution. Id., Tab 2 at 4. The order specifically provided

that Watkins “is to pay any remaining balance [of his restitution] after incarceration, at

the direction of the probation office. Restitution is to be paid prior to the termination of

supervised release.” Id. Following his release, the probation office directed Watkins to

sell certain real property in order to pay his restitution, and Watkins agreed to a

distribution of the proceeds in satisfaction of the restitution. Id., Tab 3. 

Citing United States v. Halper, 490 U.S. 435 (1989), Watkins now contends that

the required sale of his property constitutes multiple punishments for the same crime in

violation of the Double Jeopardy Clause. Additionally, he claims that the government

must show that the property was acquired from his “ill-gotten gains.” We disagree and

affirm for substantially the same reasons as the district court set forth in its order. 

Appellee’s App., Tab 1 at 2. 

Halper speaks to a subsequent civil action. In the case of an order of restitution

and incarceration pursuant to a single proceeding, there is only one “jeopardy.” See
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Missouri v. Hunter, 459 U.S. 359, 365-66 (1983). In such a situation, the imposition of

restitution “in addition to . . . any other penalty authorized by law,” pursuant to 

§ 3663(a)(1) of the Victim and Witness Protection Act of 1982, does not implicate the

Double Jeopardy Clause. Hunter, 459 U.S. at 365-66 (allowing cumulative sentences

imposed in a single trial). Moreover, Watkins could have brought a direct appeal to

challenge the order of restitution. Having failed to do so, he may not use § 2255 to test its

legality. United States v. Walling, 982 F.2d 447, 448 (10th Cir. 1992). 

AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge