United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 29, 2005
Charles R. Fulbruge III
Clerk
No. 04-20262
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUDY ANTHONY RUDOLPH,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:00-CR-342-1
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Rudy Anthony Rudolph appeals the revocation of his
supervised release and the sentence imposed thereafter. He argues
that (1) the district court plainly erred when it ordered him to be
continually held in custody until he paid restitution; (2) the
district court plainly erred when it failed to consider U.S.S.G.
§ 7B1.4 when revoking his supervised release; and (3) the district
court abused its discretion when it relied on documentation that
*
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opinion should not be published and is not precedent except under the limited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.
was unauthenticated to support its finding that he failed to alert
the Probation Office to a change in his financial circumstances.
Rudolph’s judgment orders that he “be held in continuous
custody until the restitution is paid in full.” Rudolph may be
resentenced following the expiration of his term of imprisonment
for a willful failure to pay the ordered restitution; however,
imposition of a new term of imprisonment is not automatic, United
States v. Payan, 992 F.2d 1387, 1397 (5th Cir. 1993), and is
subject to statutory maximums. 18 U.S.C. §§ 3614, 3615. Rudolph
therefore cannot be ordered “continuously held” until payment is
made, and he has established plain error on the part of the
district court in this regard. See United States v. Mares,
402 F.3d 511, 520 (5th Cir. 2005), petition for cert. filed,
No. 04-9517 (U.S. Mar. 31, 2005).
Rudolph has shown no other error in his proceedings.
With regard to the district court’s alleged failure to consider
U.S.S.G. § 7B1.4, Rudolph has not borne his burden of showing that
the alleged error affected the outcome of his proceedings, and,
therefore, he cannot show plain error. See Mares, 420 F.3d at 520.
The district court’s allegedly erroneous evidentiary rulings were
harmless given that the revocation of Rudolph’s supervised release
was supportable based on any one of the three charged violations
other than his failure to report a change in his financial
condition. See FED. R. CRIM. P. 52(a).
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In light of the foregoing, the revocation of Rudolph’s
supervised release is AFFIRMED. The sentence is AFFIRMED IN PART
and VACATED IN PART, vacating only that portion of the judgment
which ordered Rudolph to “be held in continuous custody until the
restitution is paid in full.” The case is REMANDED to the district
court for further proceedings consistent with this opinion.
REVOCATION OF SUPERVISED RELEASE AFFIRMED; SENTENCE
AFFIRMED IN PART AND VACATED IN PART; REMANDED.
3