* 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that this opinion should not be published and is not precedent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. 97-60284

Summary Calendar

 

THEODORE OSBORNE,

Petitioner-Appellant,

versus

U.S. DISTRICT COURT, Southern

District of Mississippi, Biloxi, MS,

Respondent-Appellee.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Mississippi 

USDC No. 1:94cv489GR

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November 26, 1997

Before DUHÉ, DeMOSS and DENNIS, Circuit Judges.

PER CURIAM:*

Theodore Osborne, federal prisoner # 98686-131, appeals the

district court’s denial of his 28 U.S.C. § 2241 federal habeas

corpus petition. Osborne argues the Parole Commission erred in

requiring the forfeiture of his street time for a misdemeanor

conviction and that the Commission waived the right to use the

misdemeanor conviction as the basis for the forfeiture. Under 18

U.S.C. § 4210(b)(2), the forfeiture of the street time was

required for parolees convicted of an offense punishable by a

term of imprisonment. See Munguia v. United States Parole 
No. 97-60284 

-2-

Comm’n, 871 F.2d 517, 521 (5th Cir. 1989). Osborne’s possession

of marijuana offense was punishable by a term of imprisonment.

Therefore, the forfeiture of Osborne’s street time was mandatory

and the Parole Commission did not have discretion to waive

Osborne’s parole violation.

Osborne argues that the forfeiture of his street time

violated his due process rights because he did not receive notice

or a hearing prior to the forfeiture. Because the forfeiture was

mandatory, the lack of a notice or hearing did not violate the

Due Process Clause. See Munguia, 871 F.2d at 521.

Osborne argues that the forfeiture of his street time

violated the Double Jeopardy Clause. The Double Jeopardy Clause

does not apply to parole revocation proceedings. See Cortinas v.

United States Parole Comm’n, 938 F.2d 43, 46-47 (5th Cir. 1991);

United States v. Whitley, 649 F.2d 296, 298 (5th Cir. 1981)

(same). Therefore, Osborne’s claim lacks merit.

Osborne contends that the Parole Commission erred in

revoking his parole based on the possession of cocaine charge

because the charge was ultimately dismissed with prejudice. 

Conviction of a criminal charge is not a constitutional

prerequisite to the revocation of parole. See Amaya v. Beto, 424

F.2d 363, 364 (5th Cir. 1970). The record shows that the Parole

Commission’s July 1990 parole revocation decision is supported by

“some evidence,” including Osborne’s guilty-plea conviction for

possession of marijuana in 1987. The record also shows that the

Parole Commission’s June 4, 1994, parole revocation decision was

support by “some evidence,” including Osborne’s cocaine use. The
No. 97-60284 

-3-

record further shows that the National Appeals Board found in

November 1995 that parole revocation was necessary due to

Osborne’s cocaine use in February 1995. Because the record

contains “some evidence” to support the Parole Commission’s

decision, Osborne’s parole revocation must be affirmed. See

Villareal v. United States Parole Comm’n, 985 F.2d 835, 839 (5th

Cir. 1993).

AFFIRMED.