UNITED STATES v. RICHEY (2020)

Alonte Deshavion Richey appeals the revocation of his supervised release and the 18-month sentences of imprisonment and supervised release imposed upon revocation. Richey’s supervised release was revoked pursuant to 18 U.S.C. § 3583(g), which requires the mandatory revocation of supervised release and imposition of a term of imprisonment for defendants found to have committed certain offenses, including possession of a controlled substance.

For the first time on appeal, Richey argues that § 3583(g) is unconstitutional in light of the Supreme Court’s decision in United States v. Haymond, ––– U.S. ––––, 139 S. Ct. 2369, 204 L.Ed.2d 897 (2019), because it does not require a jury determination of guilt beyond a reasonable doubt. As he concedes, review of this unpreserved issue is for plain error, which requires him to show (1) an error that has not been affirmatively waived, (2) that is clear or obvious, and (3) that affected his substantial rights. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). If he can satisfy those three prongs, this court has the discretion to correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id.

The Supreme Court’s decision in Haymond addressed the constitutionality of § 3583(k), and the plurality opinion specifically disclaimed expressing any view of the constitutionality of § 3583(g). See Haymond, 139 S. Ct. at 2382 n.7. In the absence of precedent from either the Supreme Court or this court extending Haymond to § 3583(g), we conclude that there is no clear or obvious error. See Puckett, 556 U.S. at 135, 129 S.Ct. 1423; United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009). Accordingly, the judgment of the district court is AFFIRMED.

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PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.