United States v. Alfred Brown ( 2019 )

Case: 19-10301 Document: 00515224491 Page: 1 Date Filed: 12/05/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-10301 December 5, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ALFRED BROWN,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-194-1
Before STEWART, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
Alfred Brown appeals the district court’s revocation of a previously
imposed term of supervised release and its imposition of an 11-month term of
imprisonment. Brown asserts that his supervised release was revoked
pursuant to 18 U.S.C. § 3583(g), which requires revocation and imposition of a
term of imprisonment where the defendant is found to have committed certain
types of violations of the terms of supervised release, including the possession
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10301 Document: 00515224491 Page: 2 Date Filed: 12/05/2019
No. 19-10301
of a controlled substance. He argues that, because § 3583(g) does not require
a jury determination under a beyond-a-reasonable-doubt standard, it is
unconstitutional in light of the Supreme Court’s recent decision in United
States v. Haymond, 139 S. Ct. 2369 (2019).
As Brown concedes, we review for plain error. To prevail on plain error
review, he must show a forfeited error that is clear or obvious and that affects
his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
If Brown makes such a showing, this court has the discretion to correct the
error but only if it “‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’” Id.
The decision in Haymond addressed the constitutionality of § 3583(k) of
the supervised release statute, and the plurality opinion specifically stated
that it was not expressing any view on the constitutionality of other
subsections of the statute, including § 3583(g). See Haymond, 139 S. Ct. at
2382 n.7. Because there currently is no case law from either the Supreme
Court or this court extending Haymond to § 3583(g) revocations, we conclude
that there is no error that is plain. See United States v. Escalante-Reyes, 689
F.3d 415, 418 (5th Cir. 2012) (en banc); United States v. Gonzalez, 792 F.3d
534, 538 (5th Cir. 2015).
As Brown has not demonstrated that the district court committed plain
error, his revocation and term of imprisonment are AFFIRMED.
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