United States of America v. Pettus, 303 F.3d 480, 487 2d Cir. 2002

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7831
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANK R. FATO, SR.,
Defendant - Appellant.
No. 04-7900
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANK R. FATO, SR.,
Defendant - Appellant.
Appeals from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (CR-95-75; CA-01-65-2; CR-90-160; CA-01-64-2)
Submitted: April 20, 2005 Decided: May 2, 2005

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Before LUTTIG and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Frank R. Fato, Sr., Appellant Pro Se. Samuel Gerald Nazzaro, Jr.,
Assistant United States Attorney, Rita R. Valdrini, Assistant
United States Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Frank R. Fato, Sr., appeals from the district court’s
dismissal of his 28 U.S.C. § 2255 (2000) motion. The district
court has granted a certificate of appealability. After a review
of the record, we affirm.
Fato first contends that his sentence, imposed upon
revocation of supervised release and probation, violated the Double
Jeopardy Clause and was imposed without jurisdiction. However,
because a sentence imposed after the revocation of supervised
release is not considered a new punishment, the Double Jeopardy
Clause is not implicated. United States v. Pettus, 303 F.3d 480,
487 (2d Cir. 2002); see also United States v. Johnson, 138 F.3d
115, 118-19 (4th Cir. 1998). In addition, the sentencing court was
well within its jurisdiction to sentence Fato to a sentence greater
than the recommended guideline range. See United States v. Davis,
53 F.3d 638, 642 (4th Cir. 1995) (sentencing guidelines regarding
violations of probation and supervised release are non-binding and
advisory).
Next, Fato asserts that the district court improperly
decided the case without a hearing. However, because it was clear
from the record that Fato was not entitled to relief, no hearing
was necessary. See Zettlemeyer v. Fulcomer, 923 F.2d 284, 301 (3d
Cir. 1991). Finally, Fato contends that the district court judge
should have recused himself. This claim is also without merit,

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because Fato failed to show any evidence of extra-judicial bias.
See Liteky v. United States, 510 U.S. 540, 555 (1994).
Accordingly, we affirm the order of the district court.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED

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