United States v. Skidmore

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-11053
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff−Appellee,

versus

RACHEL MAE SKIDMORE,

Defendant−Appellant.

Appeal from the United States District Court
for the Northern District of Texas
No. 4:11-CR-60-1

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

Rachel Skidmore appeals the revocation of her supervised release (”SR”)
and the resulting 24-month imprisonment. Skidmore’s SR was revoked per
18 U.S.C. § 3583(g), which requires the mandatory revocation of SR and
imposition of imprisonment for defendants found to have committed certain

*
Pursuant to 5TH CIRCUIT RULE 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should not be published and is not precedent except under the limited circumstances set forth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 CIRCUIT RULE 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
May 21, 2020

Lyle W. Cayce
Clerk
Case: 19-11053 Document: 00515424336 Page: 1 Date Filed: 05/21/2020

No. 19-11053
2
offenses, including possession of a controlled substance.
For the first time on appeal, Skidmore maintains that § 3583(g) is uncon-
stitutional in light of United States v. Haymond, 139 S. Ct. 2369 (2019),
because it does not require a jury determination of guilt beyond a reasonable
doubt. As Skidmore concedes, review of this unpreserved issue is for plain
error, which requires her to show, inter alia, (1) an error that has not been
affirmatively waived and (2) that is clear or obvious. See Puckett v. United
States, 556 U.S. 129, 135 (2009).
Haymond addressed the constitutionality of § 3583(k), and the plurality
opinion, 139 S. Ct. at 2382 n.7, explicitly disclaimed any view on the constitu-
tionality of § 3583(g). In the absence of precedent from the Supreme Court or
this court extending Haymond to § 3583(g), there is no clear or obvious error.
See Puckett, 556 U.S. at 135; United States v. Evans, 587 F.3d 667, 671 (5th
Cir. 2009).
For the first time on appeal, Skidmore contends that the district court
plainly erred in failing to consider the advisory policy statement of U.S.S.G.
§ 7B1.4 before imposing sentence. The record does not support that assertion.
The probation officer’s petition for offender under supervision set forth
§ 7B1.4’s recommended imprisonment range of 8 to 14 months. At the revoca-
tion hearing, the court expressly referenced the petition for offender under
supervision filed by the probation officer, supporting the conclusion that the
court reviewed the petition and implicitly considered the policy statement and
the advisory range discussed therein. Skidmore has not shown any error,
much less one that was clear or obvious. See United States v. Warren, 720 F.3d
321, 332−33 (5th Cir. 2013).
AFFIRMED.
Case: 19-11053 Document: 00515424336 Page: 2 Date Filed: 05/21/2020