               Case: 20-10731    Date Filed: 06/29/2020    Page: 1 of 7



                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 20-10731
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:19-cr-00407-JPB-1

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                        versus

CHRISTOPHER SHAWN WALTON,

                                                               Defendant-Appellant.
                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                          ________________________

                                   (June 29, 2020)

Before JORDAN, NEWSOM, and TJOFLAT, Circuit Judges.

PER CURIAM:

      Christopher Walton appeals the District Court’s denial of his motion

requesting that the Court either (a) terminate his supervised release, or (b) dismiss

the Government’s petition to revoke his supervised release because such
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revocation is unconstitutional. The District Court found that it lacked jurisdiction

to consider Walton’s motion to the extent that it asked the Court to terminate

Walton’s original sentence of five years of supervised release. It also rejected,

based on our decision in United States v. Cunningham, 607 F.3d 1264 (11th Cir.

2010), Walton’s argument that revocation of supervised release under 18 U.S.C.

§ 3583(e)(3) violates the Fifth and Sixth Amendments to the U.S. Constitution.

      On the issue of revocation, Walton admitted that he violated the conditions

of his supervised release by, inter alia, using an illicit substance, as indicated by

four positive drug tests, and failing to report as instructed for drug testing or

otherwise refusing to submit to drug testing on fourteen occasions. Based on these

violations, the District Court revoked Walton’s term of supervised release under

§ 3583(g) and sentenced him to three months in prison.1 Walton timely appealed.

      Walton raises two arguments on appeal. First, he argues that the District

Court erred in finding that it lacked jurisdiction to consider his motion to terminate

his supervised release. Second, he asserts that § 3583(e)(3) and (g) violate the

Fifth and Sixth Amendments to the U.S. Constitution. We reject both arguments,

and therefore affirm.




      1
          The Court noted that its sentence would have been the same under § 3583(e).
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                                          I.

      We review whether a district court had jurisdiction as a question of law

subject to plenary review. United States v. Stossel, 348 F.3d 1320, 1321 (11th Cir.

2003). The District Court found that it lacked jurisdiction to consider Walton’s

motion to terminate his supervised release because it amounted to an improper

collateral attack on his sentence. A sentence, including any term of supervised

release, is presumed valid until vacated in a 28 U.S.C. § 2255 proceeding. United

States v. Almand, 992 F.2d 316, 317 (11th Cir. 1993). As such, “a defendant may

not challenge, for the first time on appeal from the revocation of supervised

release, his sentence for the underlying offense.” United States v. White, 416 F.3d

1313, 1316 (11th Cir. 2005) (citing Almand, 992 F.2d at 317–18). A defendant

may, however, file a motion under 18 U.S.C. § 3583(e)(1) for early termination of

his supervised release and, after the defendant has served one year of that term, a

court may grant early termination after weighing certain § 3553(a) factors and

finding that “such action is warranted by the conduct of the defendant released and

the interest of justice.” 18 U.S.C. § 3583(e)(1); see United States v. Johnson, 877

F.3d 993, 996 (11th Cir. 2017).

      As the District Court noted, Walton did not seek early termination under

§ 3583(e)(1). Thus, to the extent that Walton asked the District Court to terminate

his term of supervised release imposed as part of the original sentence for his


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underlying offense, his request amounts to a collateral attack on the validity of that

sentence. Accordingly, the District Court properly determined that it lacked

jurisdiction to terminate his supervised release in this revocation proceeding.

                                          II.

      We review the constitutionality of 18 U.S.C. § 3583(e)(3) de novo. See

Cunningham, 607 F.3d at 1266. Under § 3583(e)(3), the district court may, after

considering the factors in § 3553(a), “revoke a term of supervised release, and

require the defendant to serve in prison all or part of the term of supervised release

authorized by statute for the offense that resulted in such term of supervised

release,” if the court finds by a preponderance of the evidence that the defendant

violated a condition of his supervised release. 18 U.S.C. § 3583(e)(3). The district

court has discretion in deciding how long to imprison the defendant, provided it

does not exceed certain statutory maxima listed in § 3583(e)(3).

      In United States v. Cunningham, we held that § 3583(e)(3) does not violate

the Fifth Amendment right to due process or the Sixth Amendment right to a jury

trial. 607 F.3d at 1268. “[T]he violation of supervised release need only be proven

by a preponderance of the evidence, and there is no right to trial by jury in a

supervised release revocation hearing.” Id. Under our prior precedent rule, we are

bound by this prior decision unless and until it is overruled by the Supreme Court

or this Court sitting en banc. United States v. Brown, 342 F.3d 1245, 1246 (11th


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Cir. 2003). Therefore, our precedent in Cunningham forecloses Walton’s

argument that § 3583(e)(3) violates the Fifth and Sixth Amendments.

      To avoid application of the prior panel precedent rule, Walton argues that

the Supreme Court’s recent decision in United States v. Haymond, 129 S. Ct. 2369

(2019), casts doubt on the constitutionality of § 3583(e), and thus our holding in

Cunningham. In Haymond, the Supreme Court held that § 3583(k) violates the

Fifth and Sixth Amendments because it imposes a new mandatory minimum

sentence upon revocation of supervised release based on additional judge-found

facts. 139 S. Ct. at 2374, 2378, 2384–85; id. at 2386 (Breyer, J., concurring in the

judgment). But it clarified that its holding was “limited to § 3583(k),” id. at 2383

(plurality opinion), and it explicitly did not address the constitutionality of

§ 3583(e) or (g), id. at 2382 n.7. Haymond therefore does not overrule or abrogate

our precedent in Cunningham regarding the constitutionality of § 3583(e).

      Moreover, the District Court found that § 3583(e)(3) did not control its

decision because § 3583(g) separately mandated revocation of Walton’s term of

supervised release. Under § 3583(g), revocation is mandatory if the defendant

possessed a controlled substance or a firearm in violation of the conditions of his

supervised release, refused to comply with drug testing imposed as a condition of

supervised release, or, as part of that drug testing, tested positive for a controlled

substance more than three times in one year. Id. § 3583(g).


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          Walton did not challenge the constitutionality of § 3583(g) below. 2 We

therefore review only for plain error this new constitutional challenge raised for the

first time on appeal. See United States v. Peters, 403 F.3d 1263, 1270 (11th Cir.

2005). Under plain error review, the defendant must show there is “(1) an error,

(2) that is plain, and (3) that affects substantial rights.” Id. at 1271 (quotations

omitted). Even then, we will exercise our discretion to correct the error “only if it

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotations omitted). Where the explicit language of a statute

does not specifically resolve an issue, and there is no precedent from the Supreme

Court or this Court directly resolving it, there can be no plain error. United States

v. Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015).

          Here, Walton has not identified any binding precedent—nor have we found

any—indicating that § 3583(g) is unconstitutional. And, as explained above, the

Supreme Court in Haymond expressed no view on the constitutionality of

§ 3583(g). See 139 S. Ct. at 2382 n.7. As such, Walton cannot establish plain

error.3

                                         *      *       *


          2
            Although he cited § 3583(g) in his motion, his argument focused only on the
constitutionality of § 3583(e)(3).
          3
            See United States v. Badgett, 957 F.3d 536, 540–41 (5th Cir. 2020) (holding that the
district court could not have plainly erred in applying § 3583(g) because there currently is no
caselaw from either the Supreme Court or the Fifth Circuit extending Haymond to § 3583(g)
revocations).
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      Accordingly, we hold that the District Court did not err in finding that it

lacked jurisdiction to terminate Walton’s original term of supervised release, and

in rejecting Walton’s arguments that § 3583(e)(3) and (g) are unconstitutional. We

therefore affirm the revocation of Walton’s supervised release.

      AFFIRMED.




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