     Case: 18-10193      Document: 00514816114         Page: 1    Date Filed: 01/30/2019




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


                                    No. 18-10193
                                                                                 FILED
                                                                          January 30, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DEREK RAY KING,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:11-CR-200-1


Before DAVIS, HAYNES and GRAVES, Circuit Judges.
PER CURIAM: *
       Derek Ray King appeals the judgment revoking his second term of
supervised release and sentencing him to a 10-month prison term and a 20-
month term of supervised release. See 18 U.S.C. § 3583(e)(3). Pretermitting
the question whether the district court infringed King’s due process right of
confrontation, we affirm on other bases supported by the record. See United
States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008); United States v. Ho, 311


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10193     Document: 00514816114     Page: 2   Date Filed: 01/30/2019


                                  No. 18-10193

F.3d 589, 602 n.12 (5th Cir. 2002); United States v. McCormick, 54 F.3d 214,
219 n.3 (5th Cir. 1995). Additionally, we pretermit deciding the standard of
review for the statutory bases for our decision because we conclude that “the
district court’s reasons were sufficient under any standard.” Rodriguez, 523
F.3d at 525.
      First, revocation and imprisonment were mandatory because King
conceded that he had tested positive for illegal substances more than three
times in a year’s period. See § 3583(g)(4). The record offers no basis for
concluding that the district court committed error of any kind in exercising the
limited discretion granted by statute to forgo mandatory revocation for
defendants on supervised release who fail drug testing. See § 3583(d); see also
United States v. Williams, 847 F.3d 251, 254-55 (5th Cir.), cert. denied, 138
S. Ct. 192 (2017); United States v. Minnitt, 617 F.3d 327, 335-36 (5th Cir.
2010); United States v. Smith, 417 F.3d 483, 486-87 (5th Cir. 2005). King had
been required to participate in substance abuse treatment since at least
October 2012 and yet continued his abusive behavior, as shown by testing in
April, May, June, and July of 2017. Second, revocation and imprisonment were
mandatory because King conceded that he had violated the condition of his
supervised release that he not possess illegal controlled substances.         See
§ 3583(g)(1). And to such extent as King may be understood to argue that the
district court was influenced in its sentence by the allegations of an addendum
to the petition for revocation and the testimony related to those allegations,
i.e., that his due process right of confrontation was infringed with regard to his
revocation sentence, he is entitled to no relief. See United States v. Beydoun,
469 F.3d 102, 108 (5th Cir. 2006).
      AFFIRMED.




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