     Case: 15-10409      Document: 00513404191         Page: 1    Date Filed: 03/02/2016




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                      No. 15-10409                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                   March 2, 2016
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

TODERICK L. JONES,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CR-77-1


Before      CLEMENT        and     HAYNES,        Circuit    Judges,     and          GARCIA
MARMOLEJO, District Court Judge. *
PER CURIAM: **
       Toderick Jones worked at the post office. He stole a letter containing a
credit card and later pleaded guilty to one count of mail theft by a postal
employee in violation of 18 U.S.C. § 1709. The district court sentenced Jones
to 24 months of probation on September 10, 2012. Jones failed to comply with




       * District Judge of the Southern District of Texas, sitting by designation.
       **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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                       No. 15-10409
the terms of his probation, 1 and the district court issued a warrant for his
arrest on August 4, 2014, resulting in Jones’s detention and remand to custody
on September 4, 2014. The district court held a probation revocation hearing
on September 29, 2014. At the end of the hearing, the district court extended
Jones’s probation period for six more months, starting that day. Jones did not
object at the hearing and did not appeal the district court’s order.
       Jones continued to violate the terms of his probation and another arrest
warrant was issued on March 26, 2015. The district court held a second
probation revocation hearing on April 27, 2015. At the end of the hearing, the
district court revoked Jones’s probation and sentenced him to four months in
prison followed by one year of supervised release. Jones now appeals under 18
U.S.C. § 3742(a).
                                               I.
       We review the district court’s jurisdiction to revoke a defendant’s
probation de novo. See United States v. Garcia-Avalino, 444 F.3d 444, 445 (5th
Cir. 2006). “A sentence imposed after revocation of probation is reviewed de
novo and will be upheld unless it is in violation of law or is plainly
unreasonable.” United States v. McCullough, 46 F.3d 400, 401 (5th Cir. 1995).
                                              II.
       Jones does not directly challenge the April 2015 revocation or the
sentence imposed. Instead, Jones asserts that the district court was without
jurisdiction to extend his probation period at the first revocation hearing. 2 As
a result, Jones claims that his probation period ended in September 2014 and
that the district court’s April 2015 revocation hearing was therefore invalid.


       1 Specifically, Jones failed to report to his probation officer as required and failed to
make timely restitution payments to his victims.
       2 Jones’s general contention is that 18 U.S.C. § 3565(c) authorizes a court to revoke

probation and to impose another sentence but does not authorize the court to extend a term
of probation.
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                                       No. 15-10409
       It is well-established that a defendant may not use the appeal of a
probation revocation hearing to challenge the validity of an underlying
sentence or earlier term of probation. See United States v. Hinson, 429 F.3d
114, 116 (5th Cir. 2005); United States v. Irvin, 820 F.2d 110, 111 (5th Cir.
1987); see also United States v. Steiner, 239 F.2d 660, 661 (7th Cir. 1957)
(holding that defendant who failed to challenge the conditions of his probation
on direct appeal was foreclosed from challenging them on a subsequent appeal
from an order revoking probation). Jones attempts to circumvent this rule by
relying on this court’s opinion in United States v. Teran, 98 F.3d 831, 833 n.1
(5th Cir. 1996), where we left open the question of whether a defendant could
challenge a probation revocation proceeding based on “the competency” of the
court to hear the original case. 3
       Even assuming, arguendo, that we would be willing to consider an
argument based on an underlying jurisdictional challenge, it is indisputable
that the district court was competent to conduct the first revocation hearing.
Although Jones’s original term of probation was set to expire on September 10,
2014, “[t]he power of the court to revoke a sentence of probation for violation of
a condition of probation, and to impose another sentence, extends beyond the
expiration of the term of probation . . . if, prior to its expiration, a warrant or
summons has been issued on the basis of an allegation of such a violation.” 18
U.S.C. § 3565(c) (emphasis added). Here, the district court issued a warrant
for Jones’s arrest on August 4, 2014, prior to the expiration of his original
probation term, for probation violations. Therefore, the district court had the



       3  But see United States v. Judd, 583 F. App’x 433 (5th Cir. 2014) (per curiam)
(unpublished) (“[Defendant] argues that the district court was without jurisdiction to conduct
the [revocation hearing] because the district court was without jurisdiction to convict him.
We will not consider this argument because a defendant may not challenge the validity of his
underlying sentence of supervised release on appeal from the revocation of supervised
release.”).
                                              3
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                                     No. 15-10409
power, i.e., the jurisdiction to conduct the probation revocation hearing on
September 29, 2014. See United States v. Naranjo, 259 F.3d 379, 383 (5th Cir.
2001); see also United States v. Cotton, 535 U.S. 625, 630 (2002) (“[J]urisdiction
means . . . the courts’ statutory or constitutional power to adjudicate the case.”)
(emphasis in original) (internal quotation marks omitted). Any attack on the
validity of the sentence or conditions imposed at that hearing must be raised
on direct appeal or collaterally under 28 U.S.C. § 2255. See United States v.
Francischine, 512 F.2d 827, 828 (5th Cir. 1975). 4
                                           III.
      Because Jones may not use his appeal of the second revocation hearing
to challenge the term of probation imposed in the first revocation hearing, the
judgment of the district court is AFFIRMED.




      4   See also United States v. Castro-Verdugo, 750 F.3d 1065, 1069 (9th Cir. 2014)
(rejecting defendant’s jurisdictional challenge to revocation hearing where underlying term
of probation was invalid, because attack on the validity of a sentence “must be done in a
§ 2255 petition, not in a probation revocation proceeding”).


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