     Case: 19-10486      Document: 00515277744        Page: 1     Date Filed: 01/20/2020




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


                                   No. 19-10486
                                                                            FILED
                                                                     January 20, 2020
                                 Summary Calendar
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee

v.

CHRISTINA ANN WHICHARD,

                                                Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:11-CR-196-7


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges
PER CURIAM:*
      Christina Ann Whichard appeals the district court’s revocation of a
previously imposed term of supervised release and its imposition of a 12-month
term of imprisonment. Whichard was subject to mandatory revocation and
imprisonment under 18 U.S.C. § 3583(g)(4) for having more than three positive
drug tests over the course of one year. She argues that, because § 3583(g) does
not require a jury determination under a beyond-a-reasonable-doubt standard,


      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10486     Document: 00515277744      Page: 2   Date Filed: 01/20/2020


                                  No. 19-10486

it is unconstitutional in light of the Supreme Court’s recent decision in United
States v. Haymond, 139 S. Ct. 2369, 2380 (2019).
      As Whichard concedes, review is for plain error. To prevail on plain error
review, she must show a forfeited error that is clear or obvious and that affects
her substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
If she makes such a showing, this court has the discretion to correct the error
but only if it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Id. (alteration in original) (internal quotation marks and
citation omitted).
      The decision in 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).
      As Whichard has not demonstrated that the district court committed
plain error, her revocation and term of imprisonment are AFFIRMED.




                                        2
