United States v. Bailey

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10763
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BARRY LYNN BAILEY,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:15-CR-54-3

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM:
*

Barry Lynn Bailey appeals the revocation of his supervised release and
the 24-month sentence imposed upon revocation. Bailey’s supervised release
was revoked pursuant to 18 U.S.C. § 3583(g), which requires the mandatory
revocation of supervised release and imposition of a term of imprisonment for
defendants found to have committed certain supervised release violations,
including possessing controlled substances.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
May 14, 2020

Lyle W. Cayce
Clerk
Case: 19-10763 Document: 00515416165 Page: 1 Date Filed: 05/14/2020

No. 19-10763
2
For the first time, Bailey argues that § 3583(g) is unconstitutional in
light of the Supreme Court’s decision in United States v. Haymond, 139 S. Ct.
2369 (2019), because it does not require a jury determination under a beyond-
a-reasonable-doubt standard. As he concedes, review of this issue is for plain
error. To prevail on plain error review, Bailey must show a forfeited 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, 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.
The decision in Haymond addressed the constitutionality of § 3583(k),
and the plurality opinion specifically stated that it was not expressing any view
on the constitutionality of other subsections of § 3583, the statute governing
supervised release, including § 3583(g). See Haymond, 139 S. Ct. at 2382 n.7.
Because there currently is no caselaw from either the Supreme Court or this
court extending Haymond to § 3583(g) revocations, we conclude that there is
no error that is clear or obvious. 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).
Accordingly, the judgment of the district court is AFFIRMED.
Case: 19-10763 Document: 00515416165 Page: 2 Date Filed: 05/14/2020