     Case: 19-10763      Document: 00515416165         Page: 1    Date Filed: 05/14/2020




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

                                                                               FILED
                                    No. 19-10763                           May 14, 2020
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

BARRY LYNN BAILEY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:15-CR-54-3


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Barry Lynn Bailey appeals the revocation of his supervised release and
the 24-month sentence imposed upon revocation. Bailey’s supervised release
was revoked pursuant to 18 U.S.C. § 3583(g), which requires the mandatory
revocation of supervised release and imposition of a term of imprisonment for
defendants found to have committed certain supervised release violations,
including possessing controlled substances.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10763      Document: 00515416165      Page: 2    Date Filed: 05/14/2020


                                   No. 19-10763

      For the first time, Bailey argues that § 3583(g) is unconstitutional in
light of the Supreme Court’s decision in United States v. Haymond, 139 S. Ct.
2369 (2019), because it does not require a jury determination under a beyond-
a-reasonable-doubt standard. As he concedes, review of this issue is for plain
error. To prevail on plain error review, Bailey must show a forfeited 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, 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.
      The decision in Haymond addressed the constitutionality of § 3583(k),
and the plurality opinion specifically stated that it was not expressing any view
on the constitutionality of other subsections of § 3583, the statute governing
supervised release, including § 3583(g). See Haymond, 139 S. Ct. at 2382 n.7.
Because there currently is no caselaw from either the Supreme Court or this
court extending Haymond to § 3583(g) revocations, we conclude that there is
no error that is clear or obvious. 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).
      Accordingly, the judgment of the district court is AFFIRMED.




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