United States v. Regis

Case: 21-11129 Document: 00516288826 Page: 1 Date Filed: 04/21/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals

Fifth Circuit FILED

April 21, 2022

No. 21-11129

Summary Calendar Lyle W. Cayce

Clerk United States of America,

Plaintiff—Appellee, versus

Regis Storm Ervin,

Defendant—Appellant.

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:21-CR-171-1

Before Jolly, Willett, and Engelhardt, Circuit Judges.

Per Curiam:*

Regis Storm Ervin was sentenced to 12 months and one day of imprisonment after he pleaded true to violating certain terms of the supervised release imposed following his 2019 drug conspiracy conviction. On appeal, he challenges the constitutionality of 18 U.S.C. § 3583(g), which

Case: 21-11129 Document: 00516288826 Page: 2 Date Filed: 04/21/2022

No. 21-11129 mandates revocation of supervised release and a term of imprisonment for any offender who violates certain conditions of supervised release, including possessing a controlled substance.

Relying on United States v. Haymond, 139 S. Ct. 2369 (2019), Ervin 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. He concedes that his challenge is foreclosed under United States v. Garner, 969 F.3d 550 (5th Cir. 2020), cert. denied, 141 S. Ct. 1439 (2021), and 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.

In Garner, we rejected the argument that Ervin has advanced and held that § 3583(g) is not unconstitutional under Haymond. See Garner, 969 F.3d at 551-53. Thus, Ervin’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, and the judgment of the district court is AFFIRMED. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).