United States v. Cato ( 2022 )

Case: 22-10476 Document: 00516550960 Page: 1 Date Filed: 11/18/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-10476
Summary Calendar FILED
November 18, 2022
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Montray Lorenzo Cato,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CR-194-1
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
Montray Lorenzo Cato directly appeals from a judgment revoking his
supervised release and sentencing him to 90 days of imprisonment and 30
months of supervised release. He challenges the constitutionality of 18
U.S.C. § 3583(g), which mandates revocation of supervised release and a
*
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opinion should not be published and is not precedent except under the limited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: 22-10476 Document: 00516550960 Page: 2 Date Filed: 11/18/2022
No. 22-10476
term of imprisonment for any offender who violates certain conditions of
supervised release, including prohibitions on possessing and using a
controlled substance.
Relying on United States v. Haymond, 139 S. Ct. 2369 (2019), Cato
contends that § 3583(g) is unconstitutional because it requires revocation of
a term of supervised release and imposition of a term of imprisonment
without affording the defendant the constitutionally guaranteed right to a
jury trial. He concedes that his challenge is foreclosed by United States v.
Garner, 969 F.3d 550 (5th Cir. 2020), and he raises the issue to preserve it
for further review. The Government has filed an unopposed motion for
summary affirmance and, alternatively, for an extension of time to file its
brief.
In Garner, we rejected the argument that Cato has advanced and held
that § 3583(g) is not unconstitutional under Haymond. See Garner, 969 F.3d
at 551–53. Thus, Cato’s sole argument on appeal is foreclosed. Accordingly,
the Government’s motion for summary affirmance is GRANTED, its
alternative motion for extension of time is DENIED, and the judgment of
the district court is AFFIRMED. See Groendyke Transp., Inc. v. Davis, 406
F.2d 1158, 1162 (5th Cir. 1969).
2