USA v. Marshall, No. 23-10677 (5th Cir. 2023)
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Case: 23-10677 Document: 00516998881 Page: 1 Date Filed: 12/12/2023 United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-10677 Summary Calendar ____________ FILED December 12, 2023 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Johnny Wayne Marshall, Jr., Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 5:19-CR-37-1 ______________________________ Before Smith, Higginson, and Engelhardt, Circuit Judges. Per Curiam: * Following his 2020 guilty plea conviction for possession of firearms by a convicted felon, Johnny Wayne Marshall, Jr., was sentenced to 27 months of imprisonment and a two-year term of supervised release. After his supervised release term was revoked in 2021, Marshall received a 10-month prison term and 12 months of supervised release. After this second _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-10677 Document: 00516998881 Page: 2 Date Filed: 12/12/2023 No. 23-10677 supervised release term was revoked in 2023, Marshall received a 12-month prison term but no further supervised release. In the instant appeal, Marshall challenges the 2023 revocation. Relying on United States v. Haymond, 139 S. Ct. 2369 (2019), Marshall argues that 18 U.S.C. § 3583(g) is unconstitutional because it requires revocation of supervised release and imposition of a prison term based on facts that need not be proved to a jury beyond a reasonable doubt. Marshall concedes that his argument is foreclosed by United States v. Garner, 969 F.3d 550, 551-53 (5th Cir. 2020), which held that § 3583(g) is not unconstitutional under Haymond. He raises the issue to preserve it for further review. Citing Garner, the Government has filed an unopposed motion for summary affirmance or, in the alternative, for an extension of time to file its brief. The parties are correct that Garner forecloses this issue; therefore, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, the Government’s motion for summary affirmance is GRANTED, its alternative motion for an extension of time is DENIED, and the judgment of the district court is AFFIRMED. 2
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