     Case: 18-11611      Document: 00515111465         Page: 1    Date Filed: 09/10/2019




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

                                    No. 18-11611                              FILED
                                  Summary Calendar                    September 10, 2019
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MAURICIO AGUIRRE, also known as Mauricio Aguirre-Orcutt, also known as
Peter Holston-Aguirre, also known as Peter Holston, also known as Miller
Aguirre,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-454-1


Before DAVIS, SMITH and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Appealing the judgment on revocation of supervised release, Mauricio
Aguirre argues that the district court violated his Sixth Amendment rights by
finding, without a jury trial, that he violated his conditions of supervised
release by a preponderance of the evidence. The Government has filed an
unopposed motion for summary affirmance, requesting alternatively an


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11611    Document: 00515111465     Page: 2   Date Filed: 09/10/2019


                                 No. 18-11611

extension of time to file its brief. Summary affirmance is proper where, 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).
      In United States v. Hinson, 429 F.3d 114, 117-19 (5th Cir. 2005), we held
that revocation of supervised release is not part of a criminal prosecution and
therefore does not require a jury trial or proof beyond a reasonable doubt under
the Sixth Amendment. Aguirre concedes that Hinson forecloses his argument
but, at the time he filed his brief, noted that the Supreme Court had granted
certiorari in United States v. Haymond, 139 S. Ct. 398 (2018).
      In Haymond, the Supreme Court held that a revocation of supervised
release and imposition of a 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. United States v.
Haymond, 139 S. Ct. 2369, 2378-83 (2019). Unlike § 3583(k), which mandated
a mandatory minimum of five years for certain offenses such as possession of
child pornography, Aguirre’s revocation under 18 U.S.C. § 3583(e)(3) did not
include a mandatory minimum based on judge-found facts. See § 3583(k).
Further, the Haymond plurality emphasized that its decision was limited to
§ 3583(k) and its mandatory minimum provision. Haymond, 139 S. Ct. at
2382-84 & n.7. In light of Haymond’s limited holding, Aguirre’s sole argument
remains foreclosed under Hinson. See id.; Hinson, 429 F.3d at 117-19.
      Accordingly, the Government’s motion for summary affirmance is
GRANTED, its alternative motion for extension of time is DENIED, and the
judgment of the district court is AFFIRMED. See Groendyke, 406 F.2d at 1162.




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