USA v. Rudy Garcia

Filing

UNPUBLISHED OPINION FILED. [16-11325 Affirmed and Remanded ] Judge: EGJ , Judge: JES , Judge: JEG Mandate pull date is 04/18/2017 for Appellant Rudy Garcia; denying motion to appoint counsel filed by Appellant Mr. Rudy Garcia [8408196-3]; granting motion to withdraw as counsel filed by Mr. Brandon Elliott Beck [8377899-2] [16-11325]

Case: 16-11325

Document: 00513928778

Page: 1

Date Filed: 03/28/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-11325
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
March 28, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RUDY GARCIA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:16-CR-11-1
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *

The Federal Public Defender appointed to represent Rudy Garcia has
moved for leave to withdraw and has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th
Cir. 2011). Garcia has filed a response. The record is not sufficiently developed
to allow us to make a fair evaluation of Garcia’s claim of ineffective assistance

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

Case: 16-11325

Document: 00513928778

Page: 2

Date Filed: 03/28/2017

No. 16-11325
of counsel; we therefore decline to consider the claim without prejudice to
collateral review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
We have reviewed counsel’s brief and the relevant portions of the record
reflected therein, as well as Garcia’s response.

We concur with counsel’s

assessment that the appeal presents no nonfrivolous issue for appellate review
and dispense with further briefing.

However, the district court’s written

judgment fails to reflect the dismissal of counts two, three, and four of the
indictment.

These counts were dismissed by the district court on the

Government’s motion. Additionally, the written judgment incorrectly states
that the offense of conviction involved “amphetamine” when in fact the offense
involved “methamphetamine.” A remand to correct such clerical errors is
proper. See FED. R. CRIM. P. 36.
Accordingly, counsel’s motion for leave to withdraw is GRANTED,
Garcia’s conviction and sentence are AFFIRMED, and the case is REMANDED
to the district court with the instructions to correct the judgment to reflect the
dismissal of counts two, three, and four of the indictment and to replace
“amphetamine” with “methamphetamine.” Garcia’s motion for appointment of
counsel is DENIED.

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