*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.

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

Clerk
No. 07-60163

2

to be protected from double jeopardy was violated by the imposition of two 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); United

States v. Olano, 507 U.S. 725, 734 (1993). 

TheFifth Amendment’s Double Jeopardy Clause protects against multiple

punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717

(1969). Post-revocation sanctions, such as a sentence imposed following the revocation of supervised release or probation, are not“punishment” but rather part

of the penalty for the original conviction. Johnson v. United States, 529 U.S.

694, 700 (2000); United States v. DiFrancesco, 449 U.S. 117, 137 (1980). Consequently, “there is no double jeopardy 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 of supervised 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. United 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 United 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 the
No. 07-60163

1 The appellantinitially had her parole revoked but was released after it was discovered

that her parole term had expired. See Whitney, 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

Double Jeopardy 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 United 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 firsttime on appeal,thatthe revocation violated double jeopardy because

he already had spent time in a treatment center as a consequence of having tested positive. Id. 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 of supervised release with respect to the double jeopardy 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.

Keys contends thatthe district court erred in sentencing him to 10 months

of imprisonment and an additional 12 months of supervised 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. See Johnson, 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

UnitedStates v.Simmons, 812F.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 of his

original plea agreement from imposing an additional term of supervised release

is flawed, because the terms of the agreement do not support his reasoning. His

theory that the district court lacked the statutory authority to impose an additional term of supervised release was rejected in United States v. Martinez, 496

F.3d 387, 390 (5th Cir.), cert. denied, 128 S. Ct. 728 (2007) (citing Johnson 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.