     Case: 19-60349      Document: 00515278960         Page: 1    Date Filed: 01/21/2020




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

                                    No. 19-60349
                                                                               Fifth Circuit

                                                                             FILED
                                  Summary Calendar                    January 21, 2020
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


                                                 Plaintiff-Appellee

v.

MICHAEL SMITHEY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 3:14-CR-89-1


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Michael Smithey appeals the sentence imposed upon revocation of his
supervised release. The district court varied upward from the advisory range
by sentencing Smithey to 24 months in prison, and he objects that this sentence
is substantively unreasonable because it is greater than necessary and fails to
reflect due consideration of mitigating factors. Smithey also contends that the
sentence contravenes the Supreme Court’s decision in United States
v. Haymond, 139 S. Ct. 2369 (2019).

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-60349     Document: 00515278960       Page: 2   Date Filed: 01/21/2020


                                   No. 19-60349

      Applying the “plainly unreasonable” standard, we review Smithey’s
claim of substantive unreasonableness by asking whether the district court
abused its discretion. See United States v. Miller, 634 F.3d 841, 843 (5th Cir.
2011). The record indicates the court took note of the advisory sentencing
range and listened to mitigating factors presented by Smithey and his counsel.
Against this, however, the court emphasized the extent to which Smithey had
violated his conditions of supervised release.        The court also referred to
Smithey’s history and characteristics, which included failure to abide by terms
of supervised release in a prior proceeding and misrepresentations made in
this proceeding. We find no error in the district court’s consideration of these
factors and will not second-guess its decision to weigh them as it did. See 18
U.S.C. § 3583(e)(3); Miller, 634 F.3d at 843 (observing that “the goal of
revocation is to punish a defendant for violating the terms of the supervised
release”); Gall v. United States, 552 U.S. 38, 51 (2007) (“The fact that the
appellate court might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.”).
      In Haymond the Supreme Court found the imposition of a mandatory
minimum sentence under 18 U.S.C. § 3583(k) unconstitutional because it was
based on findings made by a judge using a preponderance standard. Haymond,
139 S. Ct. at 2375–79. Both the plurality in Haymond and Justice Breyer, in
his concurrence, expressly stated the decision was limited to § 3583(k). See
139 S. Ct. at 2383–84; id. at 2386 (Breyer, J., concurring). That provision
played no role here; Smithey’s sentencing involved no mandatory minimum or
other departure from the terms of § 3583(e).           We accordingly reject his
arguments and AFFIRM the sentence of the district court.




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