Case: 18-11100      Document: 00514871553         Page: 1    Date Filed: 03/13/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                           United States Court of Appeals

                                    No. 18-11100
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                          March 13, 2019
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

DANIEL DE LEON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-125-1


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Daniel De Leon appeals the revocation of his supervised release from his
conviction for possession with intent to distribute over 500 grams of cocaine.
The revocation was based on De Leon’s plea of true to allegations that he failed
seven drug tests in two months and possessed marijuana. De Leon contends
that the district court erred by treating revocation as mandatory despite the
command in 18 U.S.C. § 3583(d) to consider alternatives to revocation in cases


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11100     Document: 00514871553     Page: 2      Date Filed: 03/13/2019


                                  No. 18-11100

where a supervised release violation involves failing a drug test. Because
De Leon did not raise this issue in the district court, he concedes that our
review is for plain error. See Puckett v. United States, 

, 135 (2009);
United States v. Williams, 

, 254 (5th Cir. 2017).
      Pursuant to § 3583(g), revocation of supervised release is mandatory if,
inter alia, the defendant possesses a controlled substance or tests positive for
drug use more than three times in one year. § 3583(g)(1), (4). However,
§ 3583(d) provides that a district court shall consider whether appropriate
substance abuse treatment programs warrant an exception from the rule of
mandatory revocation under § 3583(g) for a defendant who fails a drug test.
§ 3583(d); see also U.S.S.G. § 7B1.4, p.s., comment. (n.6).
      De Leon’s supervised release was revoked based not only on his failed
drug tests but also on his admission that he used and possessed marijuana.
We have recently held that when a defendant’s violative conduct “include[s]
more than failing a drug test,” it is “unclear whether [the defendant] qualifies
for the treatment exception under our existing case law.” United States v.
Brooker, 

, 986 (5th Cir.), cert. denied, 

(2017).
De Leon presents no binding precedent stating otherwise and concedes that he
cannot show clear or obvious error to establish entitlement to relief on plain
error review. See 

; 

.
      Accordingly, the judgment of the district court is AFFIRMED.              The
Government’s motions for summary affirmance and, alternatively, for an
extension of time to file an appellate brief are DENIED.




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