Petition for Writ of Certiorari — Barry Lynn Bailey, Petitioner v. United States

Supreme Court briefOct 13, 2020

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No. _______

IN THE

SUPREME COURT OF THE UNITED STATES

___________

BARRY LYNN BAILEY,

Petitioner

UNITED STATES OF AMERICA

Respondent

___________

APPENDIX

___________

INDEX TO APPENDICES

Appendix A Judgment and Opinion of Fifth Circuit

Appendix B Amended Judgment of the United States District Court for the

Northern District of Texas

Appendix C Judgment and Revocation of Sentence from of the United States

District Court for the Northern District of Texas

APPENDIX A

Case: 19-10763

Document: 00515442154

Page: 1

Date Filed: 06/05/2020

Case 1:15-cr-00054-C-BU Document 149 Filed 06/05/20

Page 1 of 2 PageID 461

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 19-10763

Summary Calendar

FILED

May 14, 2020

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

BARRY LYNN BAILEY,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:15-CR-54-3

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.

PER CURIAM: *

Barry Lynn Bailey appeals the revocation of his supervised release and

the 24-month sentence imposed upon revocation. Bailey’s supervised release

was revoked pursuant to 18 U.S.C. § 3583(g), which requires the mandatory

revocation of supervised release and imposition of a term of imprisonment for

defendants found to have committed certain supervised release violations,

including possessing controlled substances.

* 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 5TH

CIR. R. 47.5.4.

Case: 19-10763

Document: 00515442154

Page: 2

Date Filed: 06/05/2020

Case 1:15-cr-00054-C-BU Document 149 Filed 06/05/20

Page 2 of 2 PageID 462

No. 19-10763

For the first time, Bailey argues that § 3583(g) is unconstitutional in

light of the Supreme Court’s decision in United States v. Haymond, 139 S. Ct.

2369 (2019), because it does not require a jury determination under a beyonda-reasonable-doubt standard. As he concedes, review of this issue is for plain

error. To prevail on plain error review, Bailey must show a forfeited error that

is clear or obvious and that affects his substantial rights. See Puckett v. United

States, 556 U.S. 129, 135 (2009). If he makes such a showing, this court has

the discretion to correct the error but only if it “‘seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.’” Id.

The decision in Haymond addressed the constitutionality of § 3583(k),

and the plurality opinion specifically stated that it was not expressing any view

on the constitutionality of other subsections of § 3583, the statute governing

supervised release, including § 3583(g). See Haymond, 139 S. Ct. at 2382 n.7.

Because there currently is no caselaw from either the Supreme Court or this

court extending Haymond to § 3583(g) revocations, we conclude that there is

no error that is clear or obvious. See United States v. Escalante-Reyes, 689 F.3d

415, 418 (5th Cir. 2012) (en banc); United States v. Gonzalez, 792 F.3d 534, 538

(5th Cir. 2015).

Accordingly, the judgment of the district court is AFFIRMED.

APPENDIX B

Case 1:15-cr-00054-C-BU Document 112 Filed 05/22/16

Page 1 of 4 PageID 315

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

Abilene Division

UNITED STATES OF AMERICA

AMENDED JUDGMENT IN A CRIMINAL CASE

Case Number: 1:15-CR-00054-O-BL(03)

U.S. Marshal’s No.: 50142-177

Myria Wynn Boehm, Assistant U.S. Attorney

Charles Davis Scarborough, Attorney for the

Defendant

BARRY LYNN BAILEY

On February 25, 2016 the defendant, BARRY LYNN BAILEY, entered a plea of guilty as to Count 2 of

the Indictment filed on August 12, 2015. Accordingly, the defendant is adjudged guilty of such Count, which

involves the following offense:

Title & Section

Nature of Offense

Offense Ended

Count

18:472 and 2 Possession Of Counterfeit

United States Currency and Aiding and

Abetting

18:472 and 2 Possession Of Counterfeit United States

Currency and Aiding and Abetting

June 9, 2015

Two

The defendant is sentenced as provided in pages 2 through 4 of this judgment. The sentence is imposed

pursuant to Title 18, United States Code § 3553(a), taking the guidelines issued by the United States Sentencing

Commission pursuant to Title 28, United States Code § 994(a)(1), as advisory only.

The defendant shall pay immediately a special assessment of $100.00 as to Count 2 of the Indictment

filed on August 12, 2015.

The defendant shall notify the United States Attorney for this district within thirty days of any change of

name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this

judgment are fully paid.

Sentence imposed May 6, 2016.

____________________________________________

REED O’CONNOR

U.S. DISTRICT JUDGE

Signed May 22, 2016.

Case 1:15-cr-00054-C-BU Document 112 Filed 05/22/16

Judgment in a Criminal Case

Defendant: BARRY LYNN BAILEY

Case Number: 1:15-CR-00054-O-BL(3)

Page 2 of 4 PageID 316

Page 2 of 4

IMPRISONMENT

The defendant, BARRY LYNN BAILEY, is hereby committed to the custody of the Federal Bureau of

Prisons (BOP) to be imprisoned for a term of Thirteen (13) months as to Count Two of the Indictment filed

on August 12, 2015.

The defendant is to self-surrender at his own expense, at a facility designated by the U.S. Bureau of

Prisons before 2:00 p.m. on June 7, 2016.

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be placed on supervised release for a term of Two

(2) years as to Count 2 of the Indictment filed on August 12, 2015.

While on supervised release, in compliance with the standard conditions of supervision adopted by the

United States Sentencing Commission, the defendant shall:

( 1)

( 2)

( 3)

( 4)

( 5)

( 6)

( 7)

( 8)

( 9)

(10)

(11)

(12)

(13)

not leave the judicial district without the permission of the Court or probation officer;

report to the probation officer as directed by the Court or probation officer and submit a truthful

and complete written report within the first five (5) days of each month;

answer truthfully all inquiries by the probation officer and follow the instructions of the

probation officer;

support the defendant's dependents and meet other family responsibilities;

work regularly at a lawful occupation unless excused by the probation officer for schooling,

training, or other acceptable reasons;

notify the probation officer within seventy-two (72) hours of any change in residence or

employment;

refrain from excessive use of alcohol and not purchase, possess, use, distribute, or administer

any narcotic or other controlled substance, or any paraphernalia related to such substances,

except as prescribed by a physician;

not frequent places where controlled substances are illegally sold, used, distributed, or

administered;

not associate with any persons engaged in criminal activity and not associate with any person

convicted of a felony unless granted permission to do so by the probation officer;

permit a probation officer to visit the defendant at any time at home or elsewhere and permit

confiscation of any contraband observed in plain view by the probation officer;

notify the probation officer within seventy-two (72) hours of being arrested or questioned by a

law enforcement officer;

not enter into any agreement to act as an informer or a special agent of a law enforcement

agency without the permission of the Court; and,

notify third parties of risks that may be occasioned by the defendant's criminal record or personal

history or characteristics, and permit the probation officer to make such notifications and to

confirm the defendant's compliance with such notification requirement, as directed by the

probation officer.

Case 1:15-cr-00054-C-BU Document 112 Filed 05/22/16

Page 3 of 4 PageID 317

Judgment in a Criminal Case

Defendant: BARRY LYNN BAILEY

Case Number: 1:15-CR-00054-O-BL(3)

Page 3 of 4

In addition the defendant shall:

not commit another federal, state, or local crime;

not possess illegal controlled substances;

not possess a firearm, destructive device, or other dangerous weapon;

cooperate in the collection of DNA as directed by the U.S. probation officer;

shall refrain from any unlawful use of a controlled substance, submitted to one drug test within 15 days

of release from imprisonment and at least two periodic drug tests thereafter, as directed by the probation

officer pursuant to the mandatory drug testing provision of the 1994 crime bill; (Macro MDT1FW)

shall participate in a program approved by the probation officer for treatment of narcotic or drug or

alcohol dependency that will include testing for the detection of substance use, abstaining from the use

of alcohol and all other intoxicants during and after completion of treatment, contributing to the costs of

services rendered (copayment) at a rate of at least $10 per month; (Macro 23AFW)

shall participate in mental health treatment services as directed by the probation officer until

successfully discharged, which services may include prescribed medications by a licensed physician,

with the defendant contributing to the costs of services rendered (copayment) at a rate of at least $10 per

month. (Macro24AFW)

FINE/RESTITUTION

The Court does not order a fine or costs of incarceration because the defendant does not have the

financial resources or future earning capacity to pay a fine or costs of incarceration.

Restitution is not ordered because there is no victim other than society at large.

FORFEITURE

Pursuant to 18 U.S.C. §982(a)(1) and 28 U.S.C. § 2461(c), it is hereby

ordered that the defendant's interest in the following property is

condemned and forfeited to the United States:

1) a HP Envy 4500

copier/printer, Serial No. 52R2404M; 2) a Boston paper cutter; 3) all items

seized by the Abilene Police Department (APD), Abilene, Texas, on June 9,

2015, from Room 245 of the Frontier Inn, Abilene, Texas; 4) all items

seized by the APD on June 9, 2015, from 302 Peach Street, Abilene, Texas;

and 5) all items seized by the APD on June 9, 2015, from 1518 Marshall

Street, Abilene, Texas.

Case 1:15-cr-00054-C-BU Document 112 Filed 05/22/16

Page 4 of 4 PageID 318

Judgment in a Criminal Case

Defendant: BARRY LYNN BAILEY

Case Number: 1:15-CR-00054-O-BL(3)

Page 4 of 4

RETURN

I have executed this judgment as follows:

Defendant delivered on _____________________ to ___________________________________

at ________________________________________________, with a certified copy of this judgment.

United States Marshal

Deputy Marshal

APPENDIX C