United States v. Lucas Moss ( 2019 )

Case: 19-10443 Document: 00515226951 Page: 1 Date Filed: 12/06/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 6, 2019
No. 19-10443
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LUCAS JAMES MOSS,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-239-7
Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Lucas James Moss appeals the district court’s revocation of a previously
imposed term of supervised release and its imposition of a 12-month term of
imprisonment. His supervised release was revoked pursuant to 18 U.S.C.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 of a controlled
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10443 Document: 00515226951 Page: 2 Date Filed: 12/06/2019
No. 19-10443
substance. Moss 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, 2373 (2019) (plurality opinion).
As Moss concedes, we review for plain error. To prevail on plain error
review, an appellant 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 he 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),
and the plurality opinion specifically stated that it was not expressing any view
on the constitutionality of other subsections of the statute governing
supervised release, including § 3583(g). See Haymond, 139 S. Ct. at 2382 n.7.
Because there currently is no caselaw from either the Supreme Court or this
court extending Haymond to § 3583(g) revocations, we conclude that there is
no error that was 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 Moss has not demonstrated that the district court committed plain
error, his revocation and term of imprisonment are AFFIRMED.
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