     Case: 19-10484      Document: 00515321126         Page: 1    Date Filed: 02/26/2020




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

                                    No. 19-10484
                                                                               Fifth Circuit

                                                                             FILED
                                  Summary Calendar                    February 26, 2020
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


                                                 Plaintiff-Appellee

v.

BINH NGUYEN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-89-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Binh Nguyen appeals the revocation of his term of supervised release
under 18 U.S.C. § 3583(g)(1) upon the district court’s finding by a
preponderance of the evidence that he possessed controlled substances. Citing
the Supreme Court’s decision in United States v. Haymond, 139 S. Ct. 2369,
2378 (2019), he asserts that the district court erred by applying the mandatory




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10484     Document: 00515321126    Page: 2   Date Filed: 02/26/2020


                                 No. 19-10484

revocation provision of § 3583(g)(1) without affording him the right to a jury
finding that he committed the violations beyond a reasonable doubt.
      Because Nguyen raises this claim for the first time, we review for plain
error. See United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). He
must show an error that is clear or obvious and that affects his substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes
such a showing, we have the discretion to correct the error but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
      Haymond addressed the constitutionality of § 3583(k) of the supervised
release statute, and the plurality opinion specifically stated that it was not
expressing any view on the constitutionality of other subsections of the statute,
including § 3583(g). See Haymond, 139 S. Ct. at 2382 n.7. Because there
currently is no case law from either the Supreme Court or this court extending
Haymond to § 3583(g) revocations, we conclude that there is no error that was
plain. See United States v. Escalante-Reyes, 689 F.3d 415, 418 (5th Cir. 2012)
(en banc); United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015).
      Nguyen fails to establish plain error; thus, the judgment of the district
court is AFFIRMED.




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