United States v. Nevins ( 2023 )

Case: 23-10320 Document: 00516907606 Page: 1 Date Filed: 09/25/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10320
Summary Calendar FILED
____________ September 25, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Davin Chaz Nevins,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:20-CR-24-1
______________________________
Before Davis, Haynes, and Ho, Circuit Judges.
Per Curiam: *
Davin Chaz Nevins was sentenced to 37 months in prison and a three-
year term of supervised release following his 2020 conviction for possessing
a firearm after a felony conviction. His term of supervision was revoked in
2023. Relying on United States v. Haymond, 139 S. Ct. 2369 (2019), Nevins
contends for the first time on appeal that 18 U.S.C. § 3583(g) is
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-10320 Document: 00516907606 Page: 2 Date Filed: 09/25/2023
No. 23-10320
unconstitutional because it requires revocation of supervised release and
imposition of a term of imprisonment based on facts that need not be proved
to a jury beyond a reasonable doubt.
The Government has filed an unopposed motion for summary
affirmance or, in the alternative, for an extension of time to file its brief. The
motion asserts that Nevins’s argument is foreclosed by United States v.
Garner, 969 F.3d 550 (5th Cir. 2020), which held that § 3583(g) is not
unconstitutional under Haymond. See Garner, 969 F.3d at 551-53.
Nevins concedes his argument is foreclosed, explaining that he raises
the issue to preserve it for further review. This concession is well founded,
and thus summary affirmance is appropriate. See Groendyke Transp., Inc. v.
Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, the Government’s
motion for summary affirmance is GRANTED, its alternative motion for an
extension of time DENIED, and the judgment of the district court is
AFFIRMED.
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