USA v. Jesus Gamez


UNPUBLISHED OPINION FILED. [10-40007 Affirmed 10-40009 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 11/15/2010 [10-40007, 10-40009]

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USA v. Jesus Gamez ase: 10-40007 C Document: 00511272605 Page: 1 Date Filed: 10/25/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-40007 S u m m a r y Calendar October 25, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J E S U S ALBERTO GAMEZ, D e fe n d a n t -A p p e lla n t C o n s o lid a te d with N o . 10-40009 S u m m a r y Calendar J E S U S ALBERTO GAMEZ, P e titio n e r-A p p e lla n t v. T H E HONORABLE JUDGE JANIS GRAHAM JACK, R e s p o n d e n t -A p p e lle e A p p e a ls from the United States District Court fo r the Southern District of Texas U S D C No. 7:01-CR-85-1 U S D C No. 2:09-CV-236 Case: 10-40007 Document: 00511272605 Page: 2 Date Filed: 10/25/2010 No. 10-40007 c /w No. 10-40009 B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* J e s u s Alberto Gamez, currently Texas prisoner # 1200696, pleaded guilty in 2001 in federal court to importation of marijuana and received a 30-month s e n te n c e , to be followed by a three-year term of supervised release. On D e c e m b e r 9, 2005, the Probation officer issued a superseding petition for r e v o c a t io n of the supervised release term, alleging drug use and adding a claim t h a t Gamez had been convicted in state court of aggravated assault and was s e r v in g a 10-year sentence. Although the court issued an arrest warrant, it has n o t yet been served on Gamez. Gamez filed a 28 U.S.C. 2254 petition, arguing t h a t the use of his state conviction in federal revocation proceedings constituted a violation of the Double Jeopardy Clause. The district court concluded that the p e t it io n was more properly construed as a motion in the criminal case. Because G a m e z was not challenging his state conviction by arguing that he was "in c u s t o d y in violation of the Constitution or laws or treaties of the United States," h is pleading did not constitute a 2254 petition. See 2254(a). Additionally, b e c a u s e Gamez is not serving a federal sentence and has not yet been sentenced t o 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 d is t r ic t court's construction of Gamez's motion as arising in the criminal case is n o t error. T h e court denied Gamez's motion, finding no potential double jeopardy v io la t io n . To the extent that he is challenging that ruling, no such constitutional e r r o r exists because the purpose of a sentence imposed for violating the terms o f 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. * 2 Case: 10-40007 Document: 00511272605 Page: 3 Date Filed: 10/25/2010 No. 10-40007 c /w No. 10-40009 t h a n for the criminal offense giving rise to the revocation. See United States v. P a y a n , 992 F.2d 1387, 1396-97 (5th Cir. 1992); see also United States v. ZamoraV a l l e j o , 470 F.3d 592, 596 n.6 (5th Cir. 2006) (noting that while conduct r e s u lt in g in revocation might constitute a new criminal offense, that conduct is n o t being punished twice if the defendant receives two sentences). G a m e z also argues that he is suffering a constitutional violation because t h e federal authorities have failed to execute the outstanding arrest warrant and t h e district court has failed to hold a revocation hearing. Even assuming that t h is court will consider these arguments for the first time on appeal, they are m e r it le s s . 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 is s u a n c e of the warrant and its execution, see id., Gamez has not made such an a r g u m e n t . As noted above, his double jeopardy argument is meritless. To the e x t e n t that Gamez is arguing that removal of the federal detainer may permit h im to obtain early parole on his state conviction, he has no constitutionally p r o t e c t e d liberty interest in parole under Texas law. See Johnson v. Rodriguez, 1 1 0 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 t h e federal revocation provisions. A F F IR M E D . The judgment of the district court is 3

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