United States v. Carpenter ( 2021 )

Case: 20-10902 Document: 00516004121 Page: 1 Date Filed: 09/07/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 7, 2021
No. 20-10902
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Kassie Bond Carpenter,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-240-1
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Kassie Bond Carpenter appeals her guilty plea conviction and
sentence for obstruction of justice. In her appellate brief, she initially argued
that (1) the district court erred in failing to recognize that it had the discretion
to forgo imposing a term of supervised release; and (2) 18 U.S.C. § 3147 is
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10902 Document: 00516004121 Page: 2 Date Filed: 09/07/2021
No. 20-10902
unconstitutional in view of Alleyne v. United States, 570 U.S. 99 (2013). She
subsequently filed a motion for partial dismissal of her appeal as to the first
issue. She acknowledges that the plain error standard of review is applicable
to her second issue and that she cannot show clear or obvious error because
there is no controlling authority supporting her argument that § 3147 is
unconstitutional under Alleyne.
The Government has filed a motion for summary affirmance. Because
Carpenter has conceded that she cannot show plain error, the Government
argues that summary affirmance is appropriate.
This court’s summary affirmance procedure is generally reserved for
cases in which the parties concede that the issues are foreclosed by circuit
precedent, and the Government has identified no controlling authority
foreclosing Carpenter’s appeal. See United States v. Houston, 625 F.3d 871,
873 n.2 (5th Cir. 2010) (noting the denial of summary affirmance where an
issue was not foreclosed). However, because Carpenter concedes that there
is no controlling authority supporting her argument that § 3147 is
unconstitutional under Alleyne and that she cannot demonstrate a clear or
obvious error, she has not shown plain error. See Puckett v. United States, 556
U.S. 129, 135 (2009); see also United States v. Fields, 777 F.3d 799, 802 (5th
Cir. 2015). The Government’s motion for summary affirmance and its
alternative motion for an extension of time to file a brief are DENIED.
Carpenter’s motion for partial dismissal of the appeal is GRANTED. In all
other respects, the district court’s judgment is AFFIRMED.
2