United States v. Marshall ( 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
    United States of America,                                                          Clerk
    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    supervised release term was revoked in 2021, Marshall received a 10-month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    supervised release term was revoked in 2023, Marshall received a 12-month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
    

Document Info

Docket Number: 23-10677

Filed Date: 12/12/2023

Precedential Status: Non-Precedential

Modified Date: 12/13/2023