Case: 20-11122 Document: 00515909532 Page: 1 Date Filed: 06/22/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 20-11122 June 22, 2021
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Ngoc Hong Nguyen,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:08-CR-119-18
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Ngoc Hong Nguyen was sentenced to eight months of imprisonment
and 26 months of supervised release after he pleaded true to violating the
terms of his supervised release. On appeal, he challenges the
constitutionality of 18 U.S.C. § 3583(g), which mandates revocation of
*
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opinion should not be published and is not precedent except under the limited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.
Case: 20-11122 Document: 00515909532 Page: 2 Date Filed: 06/22/2021
No. 20-11122
supervised release and a term of imprisonment for any offender who violates
certain conditions of supervised release, including possessing a controlled
substance or refusing to comply with the drug-testing requirement.
Relying on United States v. Haymond, 139 S. Ct. 2369 (2019), Nguyen
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), as revised (Aug. 14, 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 Nguyen has advanced and
held that § 3583(g) is not unconstitutional under Haymond. See Garner, 969
F.3d at 551-53. Thus, Nguyen’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).
2