IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40007

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JESUS ALBERTO GAMEZ,

Defendant-Appellant

Consolidated with

No. 10-40009

Summary Calendar

JESUS ALBERTO GAMEZ,

Petitioner-Appellant

v.

THE HONORABLE JUDGE JANIS GRAHAM JACK,

Respondent-Appellee

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 7:01-CR-85-1

USDC No. 2:09-CV-236

United States Court of Appeals

Fifth Circuit

F I L E D

October 25, 2010

Lyle W. Cayce

Clerk

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No. 10-40007

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Before WIENER, PRADO, and OWEN, Circuit Judges.

PER CURIAM:

*

Jesus Alberto Gamez, currently Texas prisoner # 1200696, pleaded guilty

in 2001 in federal court to importation of marijuana and received a 30-month

sentence, to be followed by a three-year term of supervised release. On

December 9, 2005, the Probation officer issued a superseding petition for

revocation of the supervised release term, alleging drug use and adding a claim

that Gamez had been convicted in state court of aggravated assault and was

serving a 10-year sentence. Although the court issued an arrest warrant, it has

not yet been served on Gamez. Gamez filed a 28 U.S.C. § 2254 petition, arguing

that the use of his state conviction in federal revocation proceedings constituted

a violation of the Double Jeopardy Clause. The district court concluded that the

petition was more properly construed as a motion in the criminal case. Because

Gamez was not challenging his state conviction by arguing that he was “in

custody in violation of the Constitution or laws or treaties of the United States,”

his pleading did not constitute a § 2254 petition. See § 2254(a). Additionally,

because Gamez is not serving a federal sentence and has not yet been sentenced

to serve a future federal sentence, he may not proceed under 28 U.S.C. § 2255.

See § 2255(a); Simmons v. United States, 437 F.2d 156, 159 (5th Cir. 1971). The

district court’s construction of Gamez’s motion as arising in the criminal case is

not error.

The court denied Gamez’s motion, finding no potential double jeopardy

violation. To the extent that he is challenging that ruling, no such constitutional

error exists because the purpose of a sentence imposed for violating the terms

of supervised release is to punish the defendant for the breach of trust, rather

 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.

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than for the criminal offense giving rise to the revocation. See United States v.

Payan, 992 F.2d 1387, 1396-97 (5th Cir. 1992); see also United States v. ZamoraVallejo, 470 F.3d 592, 596 n.6 (5th Cir. 2006) (noting that while conduct

resulting in revocation might constitute a new criminal offense, that conduct is

not being punished twice if the defendant receives two sentences).

Gamez also argues that he is suffering a constitutional violation because

the federal authorities have failed to execute the outstanding arrest warrant and

the district court has failed to hold a revocation hearing. Even assuming that

this court will consider these arguments for the first time on appeal, they are

meritless. Gamez is not entitled to a revocation hearing until the arrest warrant

is executed. United States v. Tippens, 39 F.3d 88, 90 (5th Cir. 1994). Although

a prisoner may allege a due process violation based on a delay between the

issuance of the warrant and its execution, see id., Gamez has not made such an

argument. As noted above, his double jeopardy argument is meritless. To the

extent that Gamez is arguing that removal of the federal detainer may permit

him to obtain early parole on his state conviction, he has no constitutionally

protected liberty interest in parole under Texas law. See Johnson v. Rodriguez,

110 F.3d 299, 305 (5th Cir. 1997). Gamez thus has not shown that he suffered

a due process violation arising from the delay in executing his arrest warrant for

the federal revocation provisions. The judgment of the district court is

AFFIRMED.

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