United States v. Stamps

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 27, 2001
• Docket: 01-10378
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10378 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

RICHARD STAMPS

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:99-CR-312-1-T -------------------- December 21, 2001 Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:*

Richard Stamps appeals his sentence and conditions of

supervised release following sentence imposed for violating

supervised release. He argues that the term of imprisonment he

received after his supervised release was revoked violates the

Double Jeopardy Clause. Stamps concedes that, because he did not

challenge the revocation on these grounds in the district court,

this court reviews it for plain error. See United States v.

Olano, 507 U.S. 725, 731-37 (1993); United States v. Calverley,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-10378 -2-

37 F.3d 160, 162-64 (5th Cir. 1994) (en banc). This alleged

error does not amount to plain error because this court has not

addressed the issue directly. See Johnson v. United States, 520

U.S. 461, 467-68 (1997); United States v. Webster, 162 F.3d 308,

357 (5th Cir. 1998); Calverley, 37 F.3d at 162.

Stamps’s argument that the sentence he received was in

violation of the Due Process Clause because he was not found

guilty beyond a reasonable doubt fails. See United States v.

Grandlund, 71 F.3d 507, 509 (5th Cir. 1996); 18 U.S.C.

§ 3583(e)(3). Likewise, his argument that the evidence was

insufficient to convict him does not amount to plain error given

the testimony of his probation officer.

Stamps correctly states that the district court’s oral

pronouncement that Stamps had not violated the special condition

of supervised release which required him to participate in a

substance abuse program prevails over the written judgment. See

United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001).

Last, Stamps’s arguments about the conditions of release

imposed in his second term of supervised release are without

merit because the conditions are reasonably related to the

factors set forth in 18 U.S.C. § 3553(a)(1) and (a)(2)(B)-(D);

involve no greater deprivations of liberty than are reasonably

necessary for the purposes set forth in § 3553(a)(2)(B)-(D); and

are be consistent with any pertinent policy statements issued by No. 01-10378 -3-

the Sentencing Commission pursuant to 28 U.S.C. § 994(a). United

States v. Coenen, 135 F.3d 938, 940 (5th Cir. 1998); 18 U.S.C.

§ 3583(d)(1)-(3).

The revocation of Stamps’s supervised release and sentence

are AFFIRMED. Stamps’s motion to file an out-of-time reply brief

is DENIED.