United States v. Michael Homer ( 2020 )

Case: 19-11137 Document: 00515463428 Page: 1 Date Filed: 06/23/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-11137 June 23, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MICHAEL DESHAWN HOMER,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:14-CR-141-1
Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
Michael Deshawn Homer appeals the revocation of his supervised
release and 18-month sentence of imprisonment imposed 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 offenses, including possession of a controlled substance. For
the following reasons, we affirm.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-11137 Document: 00515463428 Page: 2 Date Filed: 06/23/2020
No. 19-11137
First, Homer 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 of guilt beyond a reasonable
doubt. As he concedes, review of this unpreserved issue is for plain error,
which requires him to show (1) an error that has not been affirmatively waived,
(2) that is clear or obvious, and (3) that affected his substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009). If he can satisfy those three
prongs, this court has the discretion to correct the error if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings. See id.
The Supreme Court’s decision in Haymond addressed the
constitutionality of § 3583(k), and the plurality opinion specifically disclaimed
expressing any view of the constitutionality of § 3583(g). See Haymond, 139 S.
Ct. at 2382 n.7. In the absence of precedent from either the Supreme Court or
this court extending Haymond to § 3583(g), we conclude that there is no clear
or obvious error. See Puckett, 556 U.S. at 135; United States v. Badgett, 957
F.3d 536, 539-41 (5th Cir. 2020).
Second, to the extent that Homer asserts error related to the § 3583(d)
drug treatment exception to mandatory revocation under § 3583(g), it is not
clear that § 3583(d) was applicable in this case. See United States v. Brooker,
858 F.3d 983, 986 (5th Cir. 2017). Accordingly, he fails to demonstrate any
clear or obvious error with respect to the district court’s consideration of
§ 3583(d). See Puckett, 556 U.S. at 135.
Third, in light of our deferential abuse-of-discretion standard of review,
we are unpersuaded that the 18-month sentence, which was seven months
above the top of the advisory policy statement range, was substantively
unreasonable. See United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013).
AFFIRMED.
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