United States v. Pandey

United States Court of Appeals
for the Fifth Circuit

No. 20-10246
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Christina Elizabeth Pandey,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CR-38-1

Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Appealing the judgment on revocation of supervised release, Christian
Elizabeth Pandey argues, for the first time on appeal, that the district court
erred by applying 18 U.S.C. § 3583(g), which mandates revocation of
supervised release where a defendant violates the conditions of supervised

*
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not be published and is not precedent except under the limited circumstances set forth in
5
TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
August 12, 2020

Lyle W. Cayce
Clerk
Case: 20-10246 Document: 00515525059 Page: 1 Date Filed: 08/12/2020

No. 20-10246
2
release by unlawfully possessing a controlled substance. Relying on United
States v. Haymond, 139 S. Ct. 2369 (2019), Pandey contends that § 3583(g) is
unconstitutional because it requires revocation of a term of supervised
release and imposition of a term of imprisonment without affording the right
to a jury trial. Pandey concedes that her argument is foreclosed under
existing circuit precedent but raises the issue to preserve it for further
possible review.
The Government has filed an unopposed motion for summary
affirmance, asserting that the only issue on appeal is foreclosed by the
decision in United States v. Badgett, 957 F.3d 536 (5th Cir. 2020). In the
alternative, the Government moves for an extension of time to file its brief.
The Supreme Court held in Haymond that 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. Haymond, 139
S. Ct. at 2378-83. However, the Haymond plurality emphasized that its
decision was limited to § 3583(k). Haymond, 139 S. Ct. at 2382-84 & n.7. In
Badgett, we held that because Haymond had not been extended to § 3583(g)
revocations, the district court did not plainly err in applying the statute. See
Badgett, 957 F.3d at 540-41.
Because the only issue on appeal is foreclosed, see id., summary
affirmance is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969). Accordingly, the Government’s motion for summary
affirmance is GRANTED, the Government’s alternative motion for an
extension of time to file a brief is DENIED, and the judgment of the district
court is AFFIRMED.

Case: 20-10246 Document: 00515525059 Page: 2 Date Filed: 08/12/2020