*Pursuant to 5 TH C IR
. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the li mited circumstances set forth in 5 T H C IR
. R. 47.5.4.

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60163 Summary Calendar

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 supervised release on two prior separate convictions. He first argues that his right United States Court of Appeals

Fifth Circuit 

### F I L E D June 17, 2008 Charles R. Fulbruge III ClerkNo. 07-60163

2 to be protected from doublejeopardy was violated by the imposition oftwo separate 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); U nited States v. Olano, 507 U.S. 725, 734 (1993). The Fifth Amendment’s Double Jeopardy Clause protects against multiple punishments for the same offense. N orth Carolina v. Pearce , 395 U.S. 711, 717 (1969). Post-revocation sanctions, such as a sentence imposed following the revocation ofsupervised release or probation, are not “punishment” but rather part of the penalty for the original conviction. J ohnson v. United States, 529 U.S. 694, 700 (2000); United States v. DiFrancesco, 449 U.S. 117, 137 (1980). Consequently, “there is no doublejeopardy 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 conduct, after revocation of three concurrent terms ofsupervised 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. U nited 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 context of parole and probation revocations. In U nited States v. Whitney, 649 F.2d 296 (5th Cir. Unit B June 1981), the defendant had her parole and probation revoked based in part on the same violations and argued that that violated theNo. 07-60163

1 The appellant initially had her parole revoked but was released after it wasdiscovered that her parole term had expired. SeeWhitney, 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 DoubleJeopardy Clause. 1 We rejected the argument based on the determination that the Double Jeopardy Clause did not apply to parole and probation revocation proceedings. Id. at 297. In U nited States v. Bubenik, No. 99-40153, 1999 WL 767257, at *1 (5th Cir. Sept. 8, 1999) (per curiam) (unpublished), the defendant’s probation was revoked, in part, based on a positive drug test. He argued, for the first time on appeal, that the revocation violated doublejeopardy because he already had spent time in a treatment center as a consequence ofhaving tested positive. I d. 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 revocation ofsupervised release with respect to the doublejeopardy 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. Keyscontends that the district court erred in sentencing him to 10months ofimprisonment and an additional 12 months ofsupervised release after the revocation 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. SeeJohnson, 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;No. 07-60163

4 United Statesv. 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 ofhis original plea agreement from imposing an additional term ofsupervised release is flawed, because the terms ofthe agreement do not support his reasoning. His theory that the district court lacked the statutory authority to impose an additional term ofsupervised release was rejected in United States v. Martinez, 496 F.3d 387, 390 (5th Cir.), cert. denied, 128 S. Ct. 728 (20 07) (citing J ohnson 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.