United States v. Dorman

United States Court of Appeals
for the Fifth Circuit

No. 19-11375
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Joshua Ryan Dorman,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:17-CR-74-1

Before Clement, Higginson, and Engelhardt, Circuit
Judges.
Per Curiam:*
Joshua Ryan Dorman appeals the revocation of his supervised release
and the 18-month sentence imposed under 18 U.S.C. § 3583(g), which, in
relevant part, requires the revocation of supervised release where a defendant

*
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not be published and is not precedent except under the limited circumstances set forth in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 26, 2020

Lyle W. Cayce
Clerk
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No. 19-11375
2
possesses a controlled substance or tests positive for illegal drugs more than
three times in a year.
Relying on United States v. Haymond, 139 S. Ct. 2369 (2019), Dorman
first argues § 3583(g) is unconstitutional because it requires the district court
to revoke a defendant’s supervised release and impose a prison sentence
without affording the defendant the constitutional right to have the
allegations proven to a jury beyond a reasonable doubt. Because Dorman did
not assert this argument in the district court, plain error review applies. See
United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010). Dorman must show
a clear or obvious error that affects his substantial rights. See id. If he is able
to make this showing, this court “should exercise its discretion to correct the
forfeited error if the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Molina-Martinez v. United States, 136 S.
Ct. 1338, 1343 (2016) (internal quotation marks and citation omitted).
Dorman correctly concedes his argument that there was clear or obvious
error is foreclosed. Because “there currently is no caselaw from either the
Supreme Court or this court extending Haymond to § 3583(g) revocations,
the district court could not have committed any clear or obvious error in
applying the statute.” Badgett v. United States, 957 F.3d 536, 541 (5th Cir.
2020) (internal quotation marks and citation omitted).
Dorman next argues his sentence is substantively unreasonable
because, by treating revocation as mandatory under § 3583(g), the district
court considered an improper factor and made a clear error of judgment in
balancing the sentencing factors. A sentence imposed upon revocation of
supervised release is reviewed under the plainly unreasonable standard.
United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011). This court first
evaluates whether the district court procedurally erred and then considers
the substantive reasonableness of the sentence under an abuse of discretion
standard. Id. If the sentence is unreasonable, this court then considers
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“whether the error was obvious under existing law.” Id. Even if we assume,
arguendo, that Dorman could show that the district court improperly based
its sentencing decision on the mandatory revocation provision of § 3583(g),
he would not be able to show the alleged error was obvious under existing
law. See Badgett, 957 F.3d at 541. Accordingly, he has not shown that his
sentence was plainly unreasonable.
The district court’s judgment is AFFIRMED.
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