                                                             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opinion should not be published and is not precedent except under the limited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).



                                      2
          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.




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