     Case: 18-10241      Document: 00514687852         Page: 1    Date Filed: 10/18/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                    No. 18-10241                          FILED
                                  Summary Calendar                  October 18, 2018
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

BOBBY PERALES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:08-CR-99-2


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       Bobby Perales appeals the district court’s judgment revoking his term of
supervised release and sentencing him to 12 months of imprisonment and 84
months of continued supervised release. The revocation followed Perales’s plea
of true to charges that he possessed a controlled substance and failed four drug
tests in two months.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 18-10241

      Perales argues that the district court should have considered imposing
substance abuse treatment in lieu of imprisonment and should not have
treated revocation as mandatory. He concedes that he did not preserve the
issue and the court’s review is limited to plain error. Thus, he must show a
clear or obvious error that affects his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). This court will only correct a plain error that
“seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation, alteration, and citation omitted).
      The Government has moved for summary affirmance or, alternatively,
for additional time to submit a brief.       Perales believes his argument is
foreclosed under plain error review because his right to treatment is not clearly
established. Therefore, he does not oppose the Government’s motion.
      Supervised release must be revoked if a defendant possesses a controlled
substance or fails more than three drug tests in a year. See 18 U.S.C. § 3583(g).
However, if a defendant fails a drug test, “[t]he court shall consider” whether
the availability of, or a defendant’s participation in, substance abuse treatment
“warrants an exception” to revocation. § 3583(d). If, like Perales, a defendant
admits to possessing a controlled substance and failing drug tests, it is “unclear
whether [he] qualifies for the treatment exception under our existing case law.”
United States v. Brooker, 858 F.3d 983, 986 (5th Cir.), cert denied, 138 S. Ct.
346 (2017). Because the issue is not foreclosed by circuit precedent, summary
affirmance is improper. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969).
      However, additional briefing is not required. We agree that Perales’s
argument does not survive the standard of review. A lack of binding precedent
“is often dispositive in the plain-error context.” United States v. Gonzalez, 792
F.3d 534, 538 (5th Cir. 2015). Moreover, the record shows that Perales was



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                                  No. 18-10241

already in treatment when he possessed and used a controlled substance. His
evident lack of progress renders “it unlikely that the district court would have
opted to sentence [him] to further treatment in lieu of mandatory revocation
and imprisonment.” United States v. Williams, 847 F.3d 251, 254-55 (5th Cir.),
cert denied, 138 S. Ct. 192 (2017); see also Brooker, 858 F.3d at 987. Perales
fails to show the district court plainly erred.
      Accordingly, the Government’s motion for summary affirmance is
DENIED, the alternative motion for an extension of time is DENIED, and the
district court’s judgment is AFFIRMED.




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