USA v. Marcus Garza

Filing

UNPUBLISHED OPINION FILED. [16-50708 Affirmed] Judge: CDK, Judge: JLD, Judge: GJC. Mandate pull date is 05/02/2017 for Appellant Marcus A. Garza [16-50708]

Case: 16-50708

Document: 00513947571

Page: 1

Date Filed: 04/11/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-50708
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
April 11, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARCUS A. GARZA,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:12-CR-323-1
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *

Marcus A. Garza pleaded guilty to one count of bank fraud and one count
of failure to file income tax returns. The district court imposed a total sentence
of 30 months and restitution of $681,943.27. On direct appeal, we vacated the
restitution order and remanded the case for assessment of restitution. On
remand, the district court denied motions by Garza seeking to withdraw 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

Case: 16-50708

Document: 00513947571

Page: 2

Date Filed: 04/11/2017

No. 16-50708
guilty plea and to expand resentencing beyond the issue of restitution. The
district court amended the judgment of conviction to reflect $0 in restitution.
Garza argues that the district court erred by refusing to address the
validity of his plea or the calculation of his sentence on remand. Garza did not
challenge either the validity of his conviction or the calculation of his prison
sentence on direct appeal. As neither issue had been challenged before this
court, neither was subject to examination by the district court on remand or by
this court in this subsequent appeal. See United States v. Teel, 691 F.3d 578,
583 (5th Cir. 2012).
In this second appeal, Garza first argues that the district court was
without jurisdiction to convict him because the Government failed to allege and
prove an element of the offense. Defects in an indictment, such as insufficient
factual allegations, do not deprive the district court of subject matter
jurisdiction. United States v. Cotton, 535 U.S. 625, 630-31 (2002); United
States v. Scruggs, 714 F.3d 258, 263 (5th Cir. 2013).
AFFIRMED.

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