United States v. Whichard

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10486
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CHRISTINA ANN WHICHARD,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:11-CR-196-7

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges
PER CURIAM:
*

Christina Ann Whichard appeals the district court’s revocation of a
previously imposed term of supervised release and its imposition of a 12-month
term of imprisonment. Whichard was subject to mandatory revocation and
imprisonment under 18 U.S.C. § 3583(g)(4) for having more than three positive
drug tests over the course of one year. She argues that, because § 3583(g) does
not require a jury determination under a beyond-a-reasonable-doubt standard,

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
January 20, 2020

Lyle W. Cayce
Clerk
Case: 19-10486 Document: 00515277744 Page: 1 Date Filed: 01/20/2020

No. 19-10486

it is unconstitutional in light of the Supreme Court’s recent decision in United
States v. Haymond, 139 S. Ct. 2369, 2380 (2019).
As Whichard concedes, review is for plain error. To prevail on plain error
review, she must show a forfeited error that is clear or obvious and that affects
her substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
If she 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. (alteration in original) (internal quotation marks and
citation omitted).
The decision in 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).
As Whichard has not demonstrated that the district court committed
plain error, her revocation and term of imprisonment are AFFIRMED.

2
Case: 19-10486 Document: 00515277744 Page: 2 Date Filed: 01/20/2020