United States v. Onick

United States Court of Appeals
for the Fifth Circuit

No. 20-10165
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Kiandrick Onick,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-25-1

Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Kiandrick Onick pleaded guilty to possession of a firearm by a felon,
and he was sentenced below the advisory guideline range to 32 months of
imprisonment and three years of supervised release. After a remand for
resentencing, United States v. Onick, 702 F. App’x 231, 233 (5th Cir. 2017),

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
December 1, 2020

Lyle W. Cayce
Clerk
Case: 20-10165 Document: 00515656747 Page: 1 Date Filed: 12/01/2020

No. 20-10165
2
the district court resentenced Onick to time served, with a three-year term of
supervised release. Onick began serving his term of supervised release on
February 28, 2018.
On March 26, 2019, the probation officer filed a petition charging that
Onick had violated the mandatory conditions of his supervised release that
he not commit another federal, state, or local crime, and that he not possess
an illegal controlled substance. The report also alleged that Onick submitted
four urine specimens that tested positive for marijuana, which violated his
mandatory conditions of release, and that he violated the condition that he
participate in a drug treatment and testing program by failing to report to
submit urine specimens seven times.
Based on these alleged violations, Onick was subject to mandatory
revocation under 18 U.S.C. § 3583(g), which requires revocation and a term
of imprisonment for defendants found to have committed certain gun or drug
violations. Onick objected that the mandatory revocation feature of § 3583(g)
was unconstitutional under United States v. Haymond, 139 S. Ct. 2369 (2019).
The district court rejected his argument and sentenced Onick to 11 months
of imprisonment, with no additional term of supervised release.
Because Onick preserved his challenge, our review is de novo. United
States v. Garner, 969 F.3d 550, 551 (5th Cir. 2020). In Haymond, the Supreme
Court held that a different mandatory revocation provision, § 3583(k),
violates the Fifth and Sixth Amendments. 139 S. Ct. at 2373. Onick argues
that the Court’s reasoning in Haymond invalidating § 3583(k) applies with
equal force to § 3583(g). However, we rejected Onick’s exact argument in
Garner, concluding that § 3583(g) “lacks the three features which led the
Court to hold § 3583(k) unconstitutional.” Id. at 551. Specifically, we stated
that (1) Subsection (g) applied more generally to violations of common
supervised released conditions, while Subsection (k) applied only when a
Case: 20-10165 Document: 00515656747 Page: 2 Date Filed: 12/01/2020

No. 20-10165
3
defendant committed a discrete set of criminal offenses; (2) Subsection (g),
unlike Subsection (k), did not dictate the length of the sentence imposed for
the violation; and (3) Subsection (g), unlike Subsection (k), did not prescribe
a sentence that was based on the violation, but instead granted the judge
discretion to impose any sentence authorized under the general revocation
statute. Id. at 553. Based on the differences between § 3583(k) and § 3583(g),
we held that § 3583(g) “is not unconstitutional under Haymond.” Id.
AFFIRMED.
Case: 20-10165 Document: 00515656747 Page: 3 Date Filed: 12/01/2020