United States v. Green

United States Court of Appeals
for the Fifth Circuit

No. 20-10091
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Bruce Kintrell Green,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CR-150-1

Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Bruce Kintrell Green was sentenced to 24 months of imprisonment
after violating the terms of his supervised release. On appeal, he challenges
the constitutionality of 18 U.S.C. § 3583(g), which mandates a term of
imprisonment for any offender who violates certain 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not be published and is not precedent except under the limited circumstances set forth in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
September 2, 2020

Lyle W. Cayce
Clerk
Case: 20-10091 Document: 00515550998 Page: 1 Date Filed: 09/02/2020

No. 20-10091
2
release such as possessing a controlled substance or refusing to comply with
the drug-testing requirement. Relying on United States v. Haymond, 139 S.
Ct. 2369 (2019), Green 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 defendant the constitutionally
guaranteed right to a jury trial, which requires proof beyond a reasonable
doubt. He concedes that his plain-error challenge is foreclosed under United
States v. Badgett, 957 F.3d 536 (5th Cir. 2020), but he raises the issue to
preserve it for further review. The Government has filed an unopposed
motion for summary affirmance and, alternatively, 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. See Haymond,
139 S. Ct. at 2378-83. Unlike § 3583(k), which mandated a mandatory
minimum of five years for certain offenses such as possession of child
pornography, § 3583(g) does not provide for a mandatory minimum sentence
based on judge-found facts. See § 3583(g), (k). Further, the Haymond
plurality limited its decision to § 3583(k) and its mandatory minimum
provision. See 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 commit clear or obvious error in applying the statute.
See Badgett, 957 F.3d at 540-41.
In view of Badgett, Green’s sole argument on appeal is foreclosed.
Accordingly, the Government’s motion for summary affirmance is
GRANTED, its alternative motion for extension of time is DENIED AS
MOOT, and the judgment of the district court is AFFIRMED. See
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Case: 20-10091 Document: 00515550998 Page: 2 Date Filed: 09/02/2020