United States v. Orey ( 2023 )

Case: 23-60142 Document: 00516945896 Page: 1 Date Filed: 10/26/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-60142 FILED
Summary Calendar October 26, 2023
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Levi Orey,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:13-CR-103-2
______________________________
Before Barksdale, Engelhardt, and Wilson, Circuit Judges.
Per Curiam: *
The district court revoked Levi Orey’s supervised release and
sentenced him to 12 months and one day of imprisonment. He contends the
court erred in concluding he violated the terms of his supervised release when
he committed the crimes of disorderly conduct and possession of a controlled
substance.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-60142 Document: 00516945896 Page: 2 Date Filed: 10/26/2023
No. 23-60142
Our court reviews the decision to revoke supervised release for abuse
of discretion. E.g., United States v. Spraglin, 418 F.3d 479, 480 (5th Cir.
2005). A district court does not do so if it finds by a preponderance of the
evidence the defendant violated a condition of his release. E.g., id.; see also
18 U.S.C. § 3583(e)(3) (outlining process for revoking supervised release).
Our court “must view the evidence and all reasonable inferences that may be
drawn from the evidence in a light most favorable to the government”.
United States v. Alaniz-Alaniz, 38 F.3d 788, 792 (5th Cir. 1994) (citation
omitted).
Orey contends his refusal to exit a vehicle is not disorderly conduct
under Mississippi law because he: did not intend to breach the peace and
ultimately exited the vehicle voluntarily without incident. Under Mississippi
law, a person is guilty of disorderly conduct if he fails or refuses to promptly
comply with a lawful order “with intent to provoke a breach of the peace, or
under such circumstances as may lead to a breach of the peace, or which may
cause or occasion a breach of the peace”. Miss. Code Ann. § 97-35-7(1).
Despite Orey’s assertions, a specific intent to breach the peace is not
required. E.g., S.M.K.S. v. Youth Ct. of Union Cnty., 155 So. 3d 747, 750
(Miss. 2015) (concluding defendant was lawfully arrested for disorderly
conduct when he was arrested “under circumstances that could lead to a
breach of the peace”).
Orey also contends—for the first time in his reply brief—that his
conduct did not violate the disorderly-conduct statute because: the officer’s
order was not given to avoid a breach of the peace; and the officer lacked the
authority to arrest him. Orey, however, waived those contentions by failing
to raise them in his opening brief. E.g., United States v. Fernandez, 48 F.4th
405, 412 (5th Cir. 2022).
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Case: 23-60142 Document: 00516945896 Page: 3 Date Filed: 10/26/2023
No. 23-60142
The record reflects Orey failed to comply with multiple commands
from the officer to exit the vehicle. Drawing all reasonable inferences from
the evidence in the requisite light most favorable to the Government, the
district court did not abuse its discretion in concluding Orey violated the
terms of his supervised release by committing disorderly conduct.
Regarding his other challenge to the revocation of his supervised
release, Orey asserts the evidence of illegal narcotics found in the vehicle
during the traffic stop should have been suppressed because: the stop was
prolonged without reasonable suspicion; and the warrants for his arrest were
invalid. Because Orey did not raise this exclusionary-rule issue in district
court, review is only for plain error. E.g., United States v. Williams, 847 F.3d
251, 254 (5th Cir. 2017) (reviewing unpreserved issues for plain error). The
requisite clear or obvious error necessary to constitute plain error is lacking:
the exclusionary rule does not apply to revocation proceedings absent a
showing of police harassment, not applicable here. E.g., United States v.
Montez, 952 F.2d 854, 857 (5th Cir. 1992).
AFFIRMED.
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