USA v. Paul Garza

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USA v. Paul Garza

Doc. 0

Case: 09-50806

Document: 00511176405

Page: 1

Date Filed: 07/16/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50806 S u m m a r y Calendar July 16, 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. P A U L GARZA, 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 Western District of Texas U S D C No. 5:04-109-1

B e fo r e KING, STEWART, and HAYNES, Circuit Judges. P E R CURIAM:* P a u l Garza appeals the sentence imposed upon revocation of his s u p e r v is e d release. Garza was incorrectly advised during his underlying

c r im i n a l proceedings that he faced a maximum of three years (instead of five y e a r s ) of supervised release in connection with his offense of possession of a fir e a r m during the commission of a drug trafficking offense. Garza was

c o n v ic t e d of that offense and sentenced to five years in prison and five years of s u p e r v is e d release. Following the revocation of his supervised release, Garza
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 09-50806

Document: 00511176405 Page: 2 No. 09-50806

Date Filed: 07/16/2010

w a s sentenced to 24 months of imprisonment and 36 months of supervised r e le a s e . G a r z a states that his initial guilty plea was involuntary because he was in c o r r e c t ly advised of the term of supervised release he could receive. He argues t h a t revocation counsel was ineffective for not noticing that the plea agreement s t a t e d that Garza could receive a maximum term of three years of supervised r e le a s e and for not "possibly ask[ing] for specific performance" of his plea a g r e e m e n t . He argues that, based upon the terms of his plea agreement, this c o u r t should vacate his sentence so that he can be resentenced to 24 months in p r is o n and 12 months of supervised release. I t is well-established that a defendant may not use the appeal of a r e v o c a t ion of supervised release to challenge an underlying conviction or original s e n te n ce . United States v. Hinson, 429 F.3d 114, 116 (5th Cir. 2005)

A c c o r d in g l y , we do not consider any challenge by Garza to his underlying c o n v ic t io n . In addition, because the record is insufficiently developed to allow c o n s id e r a t io n at this time of Garza's claim of ineffective assistance of revocation c o u n s e l, we do not consider his claim of ineffective assistance of counsel. United S ta te s v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006). B e c a u s e Garza did not challenge his revocation sentence in the district c o u r t, our review of his challenge to that sentence is for plain error. To show p la in error, the appellant must show a forfeited error that is clear or obvious and t h a t affects his substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1 4 2 9 (2009). If the appellant makes such a showing, this court has the

d i s c r e t io n to correct the error but only if it seriously affects the fairness, in t e g r it y , or public reputation of judicial proceedings. Id. T h e district court's imposition of the reimposed supervised release term w a s proper under 18 U.S.C. § 3583(h). Moreover, Garza has failed to

d e m o n s t r a t e that, in his case, any conflict between his revocation sentence and

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Case: 09-50806

Document: 00511176405 Page: 3 No. 09-50806

Date Filed: 07/16/2010

t h e sentencing/plea agreement admonishments he received in 2005 rises to the le v e l of plain error. Accordingly, the district court's judgment is AFFIRMED.

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