United States v. Richey

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-11019
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ALONTE DESHAVION RICHEY,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-53-1

Before STEWART, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:
*

Alonte Deshavion Richey appeals the revocation of his supervised release
and the 18-month sentences of imprisonment and supervised release imposed
upon revocation. Richey’s supervised release was revoked pursuant to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 offenses, including possession of a controlled substance.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
June 10, 2020

Lyle W. Cayce
Clerk
Case: 19-11019 Document: 00515447157 Page: 1 Date Filed: 06/10/2020

No. 19-11019
2
For the first time on appeal, Richey 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 of guilt beyond a reasonable doubt. As he concedes, review of
this unpreserved issue is for plain error, which requires him to show (1) an
error that has not been affirmatively waived, (2) that is clear or obvious, and
(3) that affected his substantial rights. See Puckett v. United States, 556 U.S.
129, 135 (2009). If he can satisfy those three prongs, this court has the
discretion to correct the error if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. See id.
The Supreme Court’s decision in Haymond addressed the
constitutionality of § 3583(k), and the plurality opinion specifically disclaimed
expressing any view of the constitutionality of § 3583(g). See Haymond, 139 S.
Ct. at 2382 n.7. In the absence of precedent from either the Supreme Court or
this court extending Haymond to § 3583(g), we conclude that 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). Accordingly, the judgment of the district court is
AFFIRMED.
Case: 19-11019 Document: 00515447157 Page: 2 Date Filed: 06/10/2020