United States v. Nguyen

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10484
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BINH NGUYEN,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-89-1

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:
*

Binh Nguyen appeals the revocation of his term of supervised release
under 18 U.S.C. § 3583(g)(1) upon the district court’s finding by a
preponderance of the evidence that he possessed controlled substances. Citing
the Supreme Court’s decision in United States v. Haymond, 139 S. Ct. 2369,
2378 (2019), he asserts that the district court erred by applying the mandatory

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
February 26, 2020

Lyle W. Cayce
Clerk
Case: 19-10484 Document: 00515321126 Page: 1 Date Filed: 02/26/2020

No. 19-10484
2
revocation provision of § 3583(g)(1) without affording him the right to a jury
finding that he committed the violations beyond a reasonable doubt.
Because Nguyen raises this claim for the first time, we review for plain
error. See United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). He
must show an 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, we have the discretion to correct the error but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
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 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).
Nguyen fails to establish plain error; thus, the judgment of the district
court is AFFIRMED.
Case: 19-10484 Document: 00515321126 Page: 2 Date Filed: 02/26/2020