USA v. Johnson, No. 23-10626 (5th Cir. 2023)
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Case: 23-10626 Document: 00516951169 Page: 1 Date Filed: 10/31/2023 United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-10626 Summary Calendar ____________ FILED October 31, 2023 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Arthur Johnson, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 2:19-CR-34-1 ______________________________ Before Haynes, Graves, and Higginson, Circuit Judges. Per Curiam: * Following his 2019 guilty plea conviction for failing to register as a sex offender, Arthur Johnson was sentenced to 48 months of imprisonment and a five-year term of supervised release. His term of supervision was revoked in 2023. For the first time on appeal, he challenges the constitutionality of 18 U.S.C. § 3583(g), which mandates revocation of supervised release and _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-10626 Document: 00516951169 Page: 2 Date Filed: 10/31/2023 No. 23-10626 a term of imprisonment for any offender who violates certain conditions of supervised release, including by possessing a controlled substance. Relying on United States v. Haymond, 139 S. Ct. 2369 (2019), Johnson contends that § 3583(g) is unconstitutional because it requires revocation of a term of supervised release and imposition of a term of imprisonment without affording the defendant the constitutionally guaranteed right to a jury trial. He concedes that his challenge is foreclosed by United States v. Garner, 969 F.3d 550 (5th Cir. 2020), and raises the issue to preserve it for further review. The Government has filed an unopposed motion for summary affirmance and, alternatively, for an extension of time to file its brief. In Garner, we rejected the argument that Johnson has advanced and held that § 3583(g) is not unconstitutional under Haymond. See Garner, 969 F.3d at 551-53. Thus, Johnson’s sole argument on appeal is foreclosed. Accordingly, the Government’s motion for summary affirmance is GRANTED, its alternative motion for extension of time is DENIED, and the judgment of the district court is AFFIRMED. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). 2
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