     Case: 20-10192      Document: 00515477751         Page: 1    Date Filed: 07/06/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                    No. 20-10192                              July 6, 2020
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SABRINA ALEXANDER WEIGHTMAN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-337-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Sabrina Alexander Weightman appeals the judgment on revocation of
her supervised release, arguing for the first time on appeal that the district
court erred by applying 18 U.S.C. § 3583(g). That statute makes revocation of
supervised release mandatory when a defendant violates the conditions of
supervised release by unlawfully possessing a controlled substance. Relying
on United States v. Haymond, 139 S. Ct. 2369 (2019), Weightman contends


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 20-10192    Document: 00515477751      Page: 2   Date Filed: 07/06/2020


                                 No. 20-10192

that Section 3583(g) is unconstitutional because it requires revocation of a
term of supervised release and imposition of a term of imprisonment without
affording the defendant the constitutionally guaranteed right to a jury trial,
which requires proof beyond a reasonable doubt. Weightman concedes that
her plain-error challenge is foreclosed under United States v. Badgett, 957 F.3d
536 (5th Cir. 2020), but she raises the issue to preserve it for further review.
      The Government has filed an unopposed motion for summary
affirmance, alternatively requesting an extension of time to file its brief.
Summary affirmance is proper when, among other instances, “the position of
one of the parties is clearly right as a matter of law so that there can be no
substantial question as to the outcome of the case.” Groendyke Transp., Inc.
v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
      The Supreme Court held in Haymond that revoking supervised release
and imposing mandatory minimum sentence pursuant to 18 U.S.C. § 3583(k),
based on judge-made findings by a preponderance of the evidence, violated due
process and the right to a trial by jury. See Haymond, 139 S. Ct. at 2378–83.
Unlike Section 3583(k), which mandates a minimum of five years for certain
offenses such as possession of child pornography, Section 3583(g) does not
provide for a mandatory minimum sentence based on judge-found facts. See
§ 3583(g), (k). Further, the Haymond plurality emphasized that its decision
was limited to Section 3583(k). See Haymond, 139 S. Ct. at 2382 n.7, 2383. In
Badgett, we held that because Haymond had not been extended to Section
3583(g) revocations, the district court did not commit clear or obvious error in
applying the statute. See Badgett, 957 F.3d at 540–41.
      The Government’s motion for summary affirmance is GRANTED, and its
alternative motion for extension of time is DENIED. The judgment of the
district court is AFFIRMED.



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