Case: 19-10884       Document: 00515528010        Page: 1    Date Filed: 08/14/2020


                             REVISED August 14, 2020



          United States Court of Appeals
               for the Fifth Circuit                              United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                                                   August 13, 2020
                                  No. 19-10884                      Lyle W. Cayce
                                                                         Clerk

 United States of America,

                                                            Plaintiff—Appellee,

                                      versus

 Christopher Brent Garner,

                                                       Defendant—Appellant.


                   Appeal from the United States District Court
                       for the Northern District of Texas
                            USDC No. 4:19-CR-147-1


 Before Davis, Jones, and Willett, Circuit Judges.
 W. Eugene Davis, Circuit Judge:
        Appellant Christopher Garner argues that 18 U.S.C. § 3583(g), which
 requires revocation of supervised release and a term of imprisonment for
 certain drug and gun violations, is unconstitutional under United States v.
 Haymond, 130 S. Ct. 2369 (2019), where the Supreme Court held that a
 different mandatory revocation provision, § 3583(k), violates the Fifth and
 Sixth Amendments. Because § 3583(g) lacks the three features which led the
 Court to hold § 3583(k) unconstitutional, we AFFIRM the judgment of the
 district court.
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                                         No. 19-10884


                                      I. BACKGROUND
        Christopher Garner pled guilty to aiding and abetting possession with
 intent to distribute methamphetamine. He was sentenced to 120 months
 imprisonment, to be followed by a five-year term of supervised release. Soon
 after his term of supervised release began, the United States Probation Office
 filed a petition alleging that Garner had violated the conditions of his release
 by possessing methamphetamine and attempting to falsify a drug test.
            Garner was subject to mandatory revocation under 18 U.S.C.
 § 3583(g), which requires revocation and a term of imprisonment for
 defendants found to have committed certain gun or drug violations. At his
 revocation hearing, Garner argued that the mandatory revocation feature of
 § 3583(g) was unconstitutional under United States v. Haymond.1 The district
 court rejected his argument, and sentenced Garner to 36 months
 imprisonment to be followed by a 24-month term of supervised release.
        On appeal, Garner again argues that mandatory revocation under
 § 3583(g) is unconstitutional. Because Garner preserved his challenge, our
 review is de novo.2
                                      II. DISCUSSION
        Under the general revocation provision, 18 U.S.C. § 3583(e), a district
 judge may revoke a defendant’s term of supervised release if it finds, by a
 preponderance of the evidence, that the defendant violated a condition of
 supervised release. And upon revocation, the district judge may impose a new
 prison term, subject to a maximum of one to five years depending on the
 severity of the original crime.


        1
            139 S. Ct. 2369 (2019).
        2
            United States v. Minnitt, 617 F.3d 327, 332 (5th Cir. 2010).




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                                         No. 19-10884


        Sometimes, though, revocation is mandatory. For example, 18 U.S.C.
 § 3583(g) requires revocation if a defendant (1) possesses a controlled
 substance in violation of a supervised release condition; (2) possesses a
 firearm in violation of federal law or a condition of supervised release;
 (3) refuses to comply with drug testing imposed as a condition of supervised
 release; or (4) tests positive for illegal controlled substances more than three
 times in one year. And when Subsection (g) applies, the district judge must
 impose a new prison term up to the maximum authorized by the general
 revocation provision.
        In United States v. Haymond, a divided Supreme Court held that a
 different provision of the supervised release statute, § 3583(k), is
 unconstitutional.3 Subsection (k) required a district judge to impose a new
 prison term of at least five years and up to life if it found, by a preponderance
 of the evidence, that the defendant committed an enumerated federal sex
 crime while on supervised release.
        A      four-justice       plurality   concluded    that     Subsection   (k)   is
 unconstitutional under Alleyne v. United States, where the Court held that any
 fact that increases the mandatory minimum sentence for a crime must be
 submitted to a jury and found beyond a reasonable doubt.4 Haymond’s
 original conviction of possession of child pornography carried a prison term
 of zero to ten years. But after the district judge found, by a preponderance of
 the evidence, that Haymond engaged in additional conduct enumerated in
 Subsection (k) while on supervised release, that triggered a new prison term
 with a mandatory minimum of at least five years. The plurality reasoned that
 Subsection (k) violates the Fifth and Sixth Amendments by increasing a
 defendant’s statutory sentencing range based on facts found by a judge, and

        3
            139 S. Ct. 2369 (2019).
        4
            570 U.S. 99 (2013).




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                                         No. 19-10884


 only by a preponderance of the evidence. The plurality declined to “express
 a view on the mandatory revocation provision for certain drug and gun
 violations in § 3583(g),”5 the provision Garner challenges here.
        Justice Breyer, concurring in the judgment, took a narrower approach.
 And because he provided the “narrowest grounds” in a case where “no
 single rationale explaining the result enjoys the assent of five justices,” his
 concurrence represents “the holding of the Court.”6 Justice Breyer
 concluded that Subsection (k) violates the Fifth and Sixth Amendments due
 to three features that, “considered in combination,” make it “less like
 ordinary revocation and more like punishment for a new offense, to which
 the jury right would typically attach:”7
        First, § 3583(k) applies only when a defendant commits a
        discrete set of federal criminal offenses specified in the statute.
        Second, § 3583(k) takes away the judge’s discretion to decide
        whether violation of a condition of supervised release should
        result in imprisonment and for how long. Third, § 3583(k)
        limits the judge’s discretion in a particular manner: by
        imposing a mandatory minimum term of imprisonment of “not
        less than 5 years” upon a judge’s finding that a defendant has
        “commit[ted] any” listed “criminal offense.”8
 Garner argues that Subsection (g) is unconstitutional under Haymond
 because it shares at least two of those features: it applies to a discrete set of
 specified violations, and it requires the district judge to impose at least some
 term of imprisonment. We disagree.



        5
            Haymond, 139 S. Ct. at 2382 n.7.
        6
            Marks v. United States, 430 U.S. 188, 193 (1977).
        7
            Haymond, 139 S. Ct. at 2386 (Breyer, J., concurring in the judgment).
        8
            Id.




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                                      No. 19-10884


        First, while Subsection (g) singles out certain conduct, only some of it
 is criminal. Indeed, Subsection (g) applies more generally to violations of
 common release conditions and non-criminal behavior the court expects
 prisoners to avoid during supervision:
        (g) Mandatory revocation for possession of controlled
        substance or firearm or refusal to comply with drug
        testing.—If the defendant—
                  (1) possesses a controlled substance in violation of the
                  conditions [of supervised release];
                  (2) possesses a firearm . . . in violation of Federal law, or
                  otherwise violates a condition of supervised release
                  prohibiting the defendant from possessing a firearm;
                  (3) refuses to comply with drug testing imposed as a
                  condition of supervised release; or
                  (4) as a part of drug testing, tests positive for illegal
                  controlled substances more than 3 times over the course
                  of 1 year;
        the court shall revoke the term of supervised release and
        require the defendant to serve a term of imprisonment not to
        exceed the maximum term of imprisonment authorized under
        subsection (e)(3).9
        Second, although Subsection (g) takes away the judge’s discretion to
 decide whether a violation should result in imprisonment, it doesn’t dictate
 the length of the sentence.
        Third, Subsection (g) doesn’t limit the judge’s discretion in the same
 “particular manner” as Subsection (k). Instead of prescribing a mandatory
 minimum, Subsection (g) grants the judge discretion to impose any sentence
 up to the maximum authorized under § 3583(e) (which depends on the


        9
            18 U.S.C. § 3583(g).




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                                          No. 19-10884


 severity of the initial offense). Unlike Subsection (k), then, any sentence
 imposed under Subsection (g) is “limited by the severity of the original crime
 of conviction, not the conduct that results in revocation.”10 That looks more
 like revocation as it is “typically understood”—as “part of the penalty for
 the initial offense,” rather than punishment for a new crime.11
         Because of these key differences, we hold that Subsection (g) is not
 unconstitutional under Haymond, and the district court did not err in its
 revocation decision.12
                                    III. CONCLUSION
         For these reasons, the judgment of the district court is AFFIRMED.




         10
              Haymond, 139 S. Ct. at 2386 (Breyer, J., concurring in the judgment).
         11
              Id. (quotations omitted).
         12
              Garner also argues that the district court erred in increasing his revocation
 sentence in order to “promote respect for the law.” This argument is foreclosed by United
 States v. Illies, 805 F.3d 607 (5th Cir. 2015), where we held that no plain, clear, or obvious
 error attends a district court’s consideration of the retributive factors set forth in § 3553(a)
 when revocation is mandatory under § 3583(g). Contrary to Garner’s argument, Holguin-
 Hernandez v. United States, 140 S. Ct. 762 (2020), did not change this court’s standard of
 review for revocation sentences. See, e.g., United States v. Chappell, 801 F. App’x 306, 307
 (5th Cir. 2020). Although an unpublished opinion issued on or after January 1, 1996 is
 generally not controlling precedent, it may be considered as persuasive authority. See
 Ballard v. Burton, 444 F.3d 391, 401 (5th Cir. 2006).




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