Gene Garland v. Keith Roy

Filing

UNPUBLISHED OPINION FILED. [11-41030 Affirmed ] Judge: TMR , Judge: EGJ , Judge: WED Mandate pull date is 09/21/2012; denying motion for bail pending appeal filed by Appellant Mr. Gene Irving Garland, Jr. [6969300-2] [11-41030]

Case: 11-41030

Document: 00511939835

Page: 1

Date Filed: 07/31/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 11-41030
Summary Calendar

July 31, 2012
Lyle W. Cayce
Clerk

GENE IRVING GARLAND,
Petitioner-Appellant
v.
WARDEN KEITH ROY,
Respondent-Appellee

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:08-CV-155

Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
Gene Irving Garland, federal prisoner # 34620-077, was convicted of one
count of securities fraud, 62 counts of mail fraud, 52 counts of promotional
money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i), and five counts of
transactional money laundering in violation of 18 U.S.C. § 1957. The judgment
of conviction was affirmed on direct appeal.
After filing an unsuccessful 28 U.S.C. § 2255 motion, Garland filed a 28
U.S.C. § 2241 petition arguing that he was entitled to release on all of his
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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money-laundering convictions in light of the Supreme Court’s decision in United
States v. Santos, 553 U.S. 507, 509 (2008).

The district court dismissed

Garland’s petition, finding that he had not met the requirements for challenging
his money-laundering convictions under § 2241. We addressed Garland’s § 1956
convictions and concluded that, in light of Santos, he was entitled to challenge
the validity of those convictions via § 2241. See Garland v. Roy, 615 F.3d 391,
394-404 (5th Cir. 2010). Accordingly, we reversed the district court’s dismissal
of Garland’s § 2241 petition and remanded the case to the district court “for
further proceedings consistent with” our opinion. Id. at 404. On remand, the
district court vacated all of Garland’s § 1956 convictions, stating that the other
convictions remained in effect and subject to resentencing. That is the judgment
now being appealed.
Garland argues that the district court on remand erroneously limited its
consideration of his claims to those pertaining to his convictions under § 1956.
He maintains that Santos applied with equal force to his convictions under
§ 1957 and that the district court should have vacated those convictions as well.
The district court’s interpretation of the scope of our remand order is a legal
question of law that we review de novo. United States v. Lee, 358 F.3d 315, 320
(5th Cir. 2004). The district court did not err in finding that our prior opinion
implicitly rejected Garland’s argument that he could use § 2241 to raise his
Santos-based challenge to the validity of his transactional-money-laundering
convictions under § 1957.
Contrary to Garland’s assertion, subjecting him to resentencing on the
remaining counts of conviction does not give rise to a double jeopardy violation.
“A petitioner can attack the validity of his conviction and sentence in a § 2241
petition only if he can meet the requirements of the ‘savings clause’ of § 2255(e).”
Wilson v. Roy, 643 F.3d 433, 434-35 (5th Cir. 2011), cert. denied, 132 S. Ct. 1062
(2012). Garland’s § 2241 petition thus effectively acted as a § 2255 motion. See
Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). Garland’s offenses had to be
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grouped for purposes of determining the applicable guidelines sentencing range
such that he received one aggregate sentence that accounted for all of his
interdependent individual sentences.

Once any portion of that aggregate

sentence was vacated, the validity of the entire sentence was put at issue. See
United States v. Benbrook, 119 F.3d 338, 340-41 (5th Cir. 1997).
The judgment of the district court is AFFIRMED. Garland has filed a
motion for release on bail pending appeal. That motion is DENIED.

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