     Case: 09-20142     Document: 00511022695          Page: 1    Date Filed: 02/08/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 8, 2010
                                     No. 09-20142
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RHONDA FLEMING,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:07-CR-513-1


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Rhonda Fleming has filed an interlocutory appeal from the denial of her
motion to dismiss the 67-count indictment against her for conspiracy, health care
fraud, wire fraud, and money laundering. The denial of a motion to dismiss an
indictment on double jeopardy grounds is immediately appealable under the
collateral order doctrine. Abney v. United States, 431 U.S. 651, 662 (1977).
Nonetheless, during the pendency of this interlocutory appeal, Fleming has been
convicted of all counts. The district court was not divested of jurisdiction during

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-20142      Document: 00511022695 Page: 2       Date Filed: 02/08/2010
                                   No. 09-20142

the pendency of this appeal because it found that the motion to dismiss was
frivolous. See United States v. Dunbar, 611 F.2d 985, 988 (5th Cir. 1980) (en
banc).
         Contending that the pre-indictment revocation of her supervised release
and subsequent resentencing was based on the same conduct, Fleming argues
that the instant prosecution violates the Double Jeopardy Clause and principles
of collateral estoppel. The district court’s denial of Fleming’s motion to dismiss
the indictment is AFFIRMED.
         The revocation sentence was not punishment for the charged offenses, but
for the offense for which supervised release had been imposed. See Johnson v.
United States, 529 U.S. 694, 700 (2000); United States v. Jackson, 559 F.3d 368,
371 (5th Cir. 2009). Thus, Fleming is not being punished twice for the same
offense. See United States v. Carlton, 534 F.3d 97, 101 (2d Cir.), cert. denied,
129 S. Ct. 613 (2008); United States v. Wyatt, 102 F.3d 241, 245 (7th Cir. 1996).
         Because revocation proceedings are not “essentially criminal,” the instant
prosecution does not constitute a second prosecution for the same offense. See
Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998); United States v. Whitney,
649 F.2d 296, 298 (5th Cir. 1981). Accordingly, the doctrine of collateral estoppel
is inapplicable. See Ashe v. Swenson, 397 U.S. 436, 445 (1970); Showery v.
Samaniego, 814 F.2d 200, 203 (5th Cir. 1987).
         Fleming’s motion for oral argument is DENIED. See F ED. R. A PP. P.
34(a)(2)(C). Fleming’s emergency motion for a stay of trial proceeding, related
letter, and motion for bail pending appeal in which she asserts that the district
court lacks jurisdiction are DENIED. See Dunbar, 611 F.2d at 989.




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