USA v. Garcia-Cardenas

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USA v. Garcia-Cardenas

Doc. 0

Case: 08-40669

Document: 00511191068

Page: 1

Date Filed: 08/02/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-40669 S u m m a r y Calendar August 2, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. R A M I R O GARCIA-CARDENAS, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 7:07-CR-989-ALL

B e fo r e JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges. P E R CURIAM:* R a m ir o Garcia-Cardenas (Garcia) appeals the sentence imposed following h is guilty plea conviction for being found in the United States unlawfully fo llo w in g deportation (Count One) and for possession with intent to distribute m a r iju a n a (Count Three). The district court sentenced Garcia to 60 months of im p r is o n m e n t and four years of supervised release but did not specify whether t h is sentence applied to both offenses for which he was convicted. After briefing w a s complete in this case, the district court, pursuant to this court's order to
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

Dockets.Justia.com

Case: 08-40669

Document: 00511191068 Page: 2 No. 08-40669

Date Filed: 08/02/2010

p r o v id e clarification, issued an amended judgment that imposed a 60-month s e n te n c e of imprisonment, a four-year term of supervised release as to Count T h r e e , and no term of supervised release as to Count One. G a r c ia argues that the district court issued an illegal general sentence, a n d he requests remand for resentencing. "A single sentence on two or more c o u n t s for a term within the aggregate is not illegal although . . . it is not in the m o s t desirable form." United States v. Granger, 275 F.2d 127, 128 (5th Cir. 1 9 6 0 ). Garcia's 60-month sentence of imprisonment on Count One and Count T h r e e is not an illegal general sentence for which resentencing is required. See C la r k v. United States, 367 F.2d 378, 380 (5th Cir. 1966). A s to the term of supervised release, any concerns that an illegal general s e n te n c e was imposed have been eliminated by the clarifying amended ju d g m e n t , which makes clear that Garcia has not been sentenced to supervised r e le a s e on Count One and that the four-year term of supervised release has been im p o s e d only as to Count Three. Thus, the district court's judgment does not c o n s t it u t e an illegal general sentence. See Benson v. United States, 332 F.2d 2 8 8 , 291 (5th Cir. 1964). Accordingly, the district court's judgment, as clarified b y the amended judgment, is affirmed. A F F IR M E D .

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