United States v. Rainey

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-10195 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KENNETH RAY RAINEY, a/k/a Kenny Reine, a/k/a John Rainy,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:93-CR-99-A - - - - - - - - - - October 23, 1996 Before POLITZ, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Kenneth Ray Rainey appeals from the imposition of a 20-month

prison sentence following revocation of his two-year term of

supervised release. Rainey contends that his sentence violated

the Double Jeopardy Clause and the Cruel and Unusual Punishment

Clause and was plainly unreasonable.

The Double Jeopardy Clause does not apply to supervised-

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-10195 - 2 -

release-revocation proceedings. United States v. Marmolejo, 915

F.2d 981, 983 (5th Cir. 1990).

Rainey’s sentence did not exceed the statutory maximum

applicable to his underlying offense; nor did the sentence exceed

the two-year maximum permitted by the revocation statutes. See

18 U.S.C. §§ 1343, 3581(b)(5). Rainey’s punishment did not

constitute cruel and unusual punishment. United States v.

Celestine, 905 F.2d 59, 60 (5th Cir. 1990).

Rainey’s sentence was not plainly unreasonable. See United

States v. Giddings, 37 F.3d 1091, 1093 (5th Cir. 1994), cert.

denied, 115 S. Ct. 1323 (1995). Rainey’s unrepentant conduct

merited the imposition of a stiff prison sentence.

Finally, Rainey’s appeal is frivolous. Counsel has “no duty

to bring frivolous appeals; the opposite is true.” United States

v. Burleson, 22 F.3d 93, 95 (5th Cir.), cert. denied, 115 S. Ct.

283 (1994).

APPEAL DISMISSED. 5TH CIR. R. 42.2.