United States v. McCall ( 2021 )

Case: 21-50201 Document: 00516063617 Page: 1 Date Filed: 10/21/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 21, 2021
No. 21-50201
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Rafi Wali McCall,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:07-CR-96-1
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Rafi Wali McCall appeals his sentence of 57 months in prison imposed
upon revocation of his supervised release following his 2007 conviction of
two counts of distributing crack cocaine. See 18 U.S.C. § 3583(e). In his
letter brief, McCall challenges on Sixth Amendment grounds the district
*
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opinion should not be published and is not precedent except under the limited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: 21-50201 Document: 00516063617 Page: 2 Date Filed: 10/21/2021
No. 21-50201
court’s use of conduct underlying a federal drug charge of which a jury
acquitted McCall, to sentence him upon revoking his supervised release.
McCall has also filed an unopposed motion for summary disposition asserting
that his arguments are foreclosed by this court’s prior decisions including
United States v. Partida, 385 F.3d 546, 565-66 (5th Cir. 2004), and Garland v.
Roy, 615 F.3d 391, 398 (5th Cir. 2010), which rely on United States v. Watts,
519 U.S. 148, 157 (1997). Because none of the cited cases directly address his
specific argument, summary disposition is inappropriate. See United States
v. Houston, 625 F.3d 871, 873 n.2 (5th Cir. 2010).
Nonetheless, further briefing is unnecessary. Because McCall raised
his acquitted-conduct challenge for the first time on appeal, we review only
for plain error. See United States v. Toure, 965 F.3d 393, 399 (5th Cir. 2020).
In light of Watts and the cases following it, and in the absence of precedent
specifically rejecting the application of this line of cases in the context of a
supervised release revocation, McCall fails to show that the district court
clearly or obviously erred in considering his acquitted conduct in arriving at
the revocation sentence. See Watts, 519 U.S. at 157; Toure, 965 F.3d at 399.
The motion for summary disposition is DENIED. The judgment of
the district court is AFFIRMED.
2