                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                            No. 99-40153
                          Summary Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

TREY BUBENIK,

                                          Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. C-96-CR-217-7
                      --------------------

                          September 8, 1999

Before GARWOOD, HIGGINBOTHAM and WIENER, Circuit Judges.

PER CURIAM:*

     Trey Bubenik appeals the revocation of his probation.      After

concluding that two positive test results indicated Bubenik had

violated two terms of his probation, the district court sentenced

him to 24 months in prison.   He now argues that (i) the written

judgment is fatally defective, (ii) he received ineffective

assistance of counsel during the revocation proceedings, (iii)




     *
        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that this opinion should not be published and is not precedent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.
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                                 -2-

the district court abused its discretion in concluding he had

violated conditions of his probation, and (iv) his right to due

process was violated during the revocation proceedings.

     Upon determining that a defendant violated a condition of

his probation, a district court may revoke a sentence of

probation and resentence the defendant.     There are currently no

binding sentencing guidelines for violations of probation.

United States v. Peña, 125 F.3d 285, 287 (5th Cir. 1997), cert.

denied, 118 S. Ct. 1527 (1998).   We will affirm a resentence

following a revocation of probation unless the new sentence is

“‘in violation of law or is plainly unreasonable.’”     Id.

(citation omitted).    Whether a sentence is illegal is reviewed de

novo.   United States v. Byrd, 116 F.3d 770, 773 (5th Cir. 1997).

When imposing a sentence after a revocation, a district court is

not required to utilize the guidelines range produced for the

original sentencing.    Peña, 125 F.3d at 287.

     Bubenik argues that the judgment is fatally defective,

primarily because it does not indicate that he admitted his use

and possession of cocaine only as to one of the two occasions

alleged in the Government’s revocation petition.     Because Bubenik

pleaded true to the May 1997 episode, the judgment correctly

indicates that he admitted his guilt to possessing and using

cocaine in violation of his probation.     The district court

determined, by virtue of both the May 1997 and October 1998 test

results, that Bubenik had violated his probation as well by

failing to participate as directed in a drug-treatment program.

The judgment correctly reflects that determination.     Bubenik
                           No. 99-40153
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contends that the Government abandoned this charge, but, in doing

so, he mischaracterizes the record.   When the revocation hearing

reconvened on a second day, the Government indicated that it

wished to abandon only the allegations in a second paragraph of

that charge, allegations relating to Bubenik’s purported failure

to attend counseling sessions and to report for drug testing.

The Government did not abandon the allegation in the first

paragraph of that charge, an allegation that Bubenik’s positive

drug tests revealed a failure to participate in drug treatment as

directed.

     The written judgment does contain an omission: Both

violations are listed as occurring only on October 23, 1998, the

date of Bubenik’s second positive test result.    The omission of

the earlier date does not, however, justify the relief sought by

Bubenik--a determination that the written judgment is void.       See

United States v. Turner, 741 F.2d 696, 698 (5th Cir. 1984)

(noting that any error committed by a district court in refusing

to hear a defendant’s extenuating evidence as to one violation of

probation was harmless, when there was ample evidence of other

violations).   Bubenik points to no legal support for the relief

he requests, and we are aware of none.    Indeed, in a case

involving a judgment from a criminal conviction, we squarely

rejected the notion that a reversal was required because a

judgment failed to set forth the verdict or findings.    United

States v. Garcia, 617 F.2d 1176, 1178 (5th Cir. 1980).     We noted

that such a technical defect would at most “be a clerical mistake

which could be corrected by the [district] court at any time”
                              No. 99-40153
                                   -4-

pursuant to Fed. R. Crim. P. 36.      Id.    Bubenik is not entitled to

a reversal merely because the judgment omits the date of his

earlier violation.

     Citing United States v. Holland, 850 F.2d 1048 (5th Cir.

1988), Bubenik argues that the judgment is deficient because it

fails to delineate the evidence relied on and the district

court’s reasons for revoking his probation.       Due process requires

that a probationer be given “a written statement . . . of the

evidence relied on and reasons for revoking the probation.”

Holland, 850 F.2d at 1050.     However, when a probationer admits a

violation, the written statement is unnecessary.        Id. at 1050-51.

The only information omitted from Bubenik’s judgment is the date

of the May 1997 violation, the violation that Bubenik admitted.

Accordingly, the protection offered by a more complete judgment

is unnecessary.     Furthermore, we hold that the judgment

adequately indicates why Bubenik’s probation was revoked.

     Bubenik argues that he received ineffective assistance of

counsel during the revocation proceedings.       A claim of

ineffective assistance is generally not reviewable on direct

appeal unless the district court has already addressed the

contention.      United States v. Bounds, 943 F.2d 541, 544 (5th Cir.

1991).    There is an exception to this rule when the record is

sufficiently developed to evaluate the claim on the merits.        Id.

This exception does not apply when “the only details to which

[the court has] access are [the defendant’s] assertions in his

brief.”    Id.
                             No. 99-40153
                                  -5-

     The only relevant details before the court are those

contained in Bubenik’s brief.    There is no way we can determine,

on the record before us, whether counsel’s performance was

unreasonably deficient or if Bubenik was prejudiced by counsel’s

performance.   See id.    Accordingly, we decline to reach Bubenik’s

claim of ineffective assistance.

     Bubenik argues that the district court abused its discretion

in revoking his probation because there was insufficient evidence

of a violation.   In this regard, he argues that the district

court’s reliance on the May 1997 incident constituted double

jeopardy because he had already been required by his probation

officer to spend time in a treatment center as a consequence of

testing positive (there were no prior revocation procceedings).

Because Bubenik did not raise this argument in the district

court, we review for plain error only.      United States v. Olano,

507 U.S. 725, 731-37 (1993); Fed. R. Crim. P. 52(b).     Bubenik can

show no error at all, however, because the Double Jeopardy Clause

does not apply to probation-revocation proceedings.      United

States v. Whitney, 649 F.2d 296, 298 (5th Cir. Unit B June 1981).

See also id. (noting that “probation revocation proceedings are

not designed to punish a criminal defendant”).

     Bubenik complains as well that there was insufficient

evidence that the October 1998 test was accurate or revealed a

knowing use of cocaine.    “To obtain reversal of a revocation

order on the basis of evidentiary insufficiency, an appellant

must show clearly that the revoking court abused its discretion.”

United States v. Teran, 98 F.3d 831, 836 (5th Cir. 1996).
                          No. 99-40153
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     Bubenik relies on United States v. Courtney, 979 F.2d 45, 50

(5th Cir. 1992), in which we vacated a revocation order because

the district court rested its order on unspecified testimony

about drug testing from previous cases.   Nevertheless, we

observed that a district court may “ordinarily rely solely” on

drug tests, and we noted that a district court may also rely on

other evidence, such as the defendant’s “prior use of the drug

and his drug addiction” and “his inconsistent explanations,”

suggesting intentional drug usage.   Id. at 49 & n.5.

     Bubenik did not assert in the district court, and he

presented no evidence, that the testing procedures he faced were

flawed. He did not object to the admission in evidence of the

October 1998 test results and admitted that he then “did test

positive.”   He did testify that there was an innocent

explanation for his positive test result in October 1998, namely

that the night before a waitress had put cocaine in his drink.

However, unlike Courtney, the district court did not rely solely

on Bubenik’s test result as proof of intentional usage.    The

court also found that Bubenik’s explanation was incredible.      The

court observed that the waitress, alleged by Bubenik to have

spiked his soda as revenge for his failure to respond to her

flirtations, could not have known about his impending drug test.

The court further relied on Bubenik’s history of drug addiction.

We cannot say that the district court shirked its duty “to draw

the appropriate inferences and determine ‘factual contentions and

whom to believe.’” Id. at 49-50 (citation omitted).     Bubenik has

not shown an abuse of discretion.
                            No. 99-40153
                                 -7-

     Bubenik argues that his right to due process was violated

during the revocation proceedings.    Most of his specific

contentions are restatements of arguments we have just rejected.

He does argue that the revocation proceeding was unfair because

the district court declined to hear testimony from a Government

witness, causing the Government to abandon allegations that

Bubenik failed to report for drug screening and counseling as

directed.   Bubenik does not explain how these events caused any

unfairness, and we perceive none.    The events actually prevented

the Government from making out part of its case.    Unfortunately

for Bubenik, the events did not prevent the Government from

making out the remainder of its case.

     Bubenik also argues that reliance on the May 1997 drug test

was unfair because that evidence was stale.    Because the argument

was not raised in the district court, we review only for plain

error.   Bubenik relies on United States v. Tyler, 605 F.2d 851,

853 (5th Cir. 1979), in which we stated that “a lengthy delay

[there 27 months between violations and a second revocation

petition filed by the Government], coupled with [a] probation

officer’s obvious decision not to file these charges in [a] first

petition, is fundamentally unfair.”     Tyler is inapposite.    Unlike

Tyler, Bubenik did not face a prior revocation proceeding in

which previous violations were purposely withheld by the

Government.    Bubenik’s prior violation instead led to treatment

for his drug abuse.   As we cautioned in Tyler itself, there is no

need to seek a revocation at every possible opportunity.       605

F.2d at 853.   Moreover, we note that in Tyler’s case, there were
                           No. 99-40153
                                -8-

no fresh violations justifying the revocation; in Bubenik’s case,

the district court specifically found that he possessed and used

cocaine in October 1998, less than two months before the

revocation proceedings were filed.   Cf. Turner, 741 F.2d at 698

(noting that any error committed by a district court in refusing

to hear a defendant’s extenuating evidence as to one violation of

probation was harmless, when there was ample evidence of other

violations).   Bubenik has shown no violation of due process or

any other error.

                                              AFFIRMED
