IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-60349

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MICHAEL SMITHEY,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 3:14-CR-89-1

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Michael Smithey appeals the sentence imposed upon revocation of his 

supervised release. The district court varied upward from the advisory range 

by sentencing Smithey to 24 months in prison, and he objects that this sentence 

is substantively unreasonable because it is greater than necessary and fails to 

reflect due consideration of mitigating factors. Smithey also contends that the 

sentence contravenes the Supreme Court’s decision in United States 

v. Haymond, 139 S. Ct. 2369 (2019). 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

January 21, 2020

Lyle W. Cayce

Clerk

 Case: 19-60349 Document: 00515278960 Page: 1 Date Filed: 01/21/2020
No. 19-60349

2

Applying the “plainly unreasonable” standard, we review Smithey’s 

claim of substantive unreasonableness by asking whether the district court 

abused its discretion. See United States v. Miller, 634 F.3d 841, 843 (5th Cir. 

2011). The record indicates the court took note of the advisory sentencing 

range and listened to mitigating factors presented by Smithey and his counsel. 

Against this, however, the court emphasized the extent to which Smithey had 

violated his conditions of supervised release. The court also referred to 

Smithey’s history and characteristics, which included failure to abide by terms 

of supervised release in a prior proceeding and misrepresentations made in 

this proceeding. We find no error in the district court’s consideration of these 

factors and will not second-guess its decision to weigh them as it did. See 18 

U.S.C. § 3583(e)(3); Miller, 634 F.3d at 843 (observing that “the goal of 

revocation is to punish a defendant for violating the terms of the supervised 

release”); Gall v. United States, 552 U.S. 38, 51 (2007) (“The fact that the 

appellate court might reasonably have concluded that a different sentence was 

appropriate is insufficient to justify reversal of the district court.”).

In Haymond the Supreme Court found the imposition of a mandatory 

minimum sentence under 18 U.S.C. § 3583(k) unconstitutional because it was 

based on findings made by a judge using a preponderance standard. Haymond, 

139 S. Ct. at 2375–79. Both the plurality in Haymond and Justice Breyer, in 

his concurrence, expressly stated the decision was limited to § 3583(k). See 

139 S. Ct. at 2383–84; id. at 2386 (Breyer, J., concurring). That provision 

played no role here; Smithey’s sentencing involved no mandatory minimum or 

other departure from the terms of § 3583(e). We accordingly reject his

arguments and AFFIRM the sentence of the district court. 

 Case: 19-60349 Document: 00515278960 Page: 2 Date Filed: 01/21/2020