                              UNPUBLISHED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
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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