USA v. Mark Garza, Jr.
UNPUBLISHED OPINION FILED. [17-50140 Affirmed in Part, Vacated in Part and Remanded] Judge: JLD, Judge: LHS, Judge: CH. Mandate issue date is 02/01/2018 for Appellant Mark Garza Jr. [17-50140]
Date Filed: 01/10/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
January 10, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA,
MARK GARZA, JR.,
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:11-CR-296-3
Before DENNIS, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM: *
Mark Garza, Jr., appeals and challenges the sentence imposed upon
revocation of his supervised release.
Because Garza must comply with
identical supervised release conditions imposed in another recently affirmed
case, we VACATE and REMAND on the supervised release conditions
challenged here without considering if there was any error. Otherwise, we find
no error and AFFIRM.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 01/10/2018
Garza violated two of his supervised release conditions, namely, that he
not commit another federal crime and not possess a firearm. After a jury trial,
Garza was convicted of possessing a firearm in violation of 18 U.S.C.
§ 922(g)(1), an offense he committed during his period of supervision. The
district court sentenced him to 120 months’ imprisonment. He appealed from
that conviction, and we recently affirmed. See United States v. Garza, No. 1750133, 2017 WL 6398007, at *1 (5th Cir. Dec. 14, 2017).
The appeal we are reviewing followed the district court’s revocation of
Garza’s supervised release.
His prison sentence for the violation was
15 months, which was to run consecutively to the 120-month prison sentence
imposed in his firearm possession case. The court also imposed a new threeyear term of supervised release subject to various conditions, including
requirements that he participate in substance abuse treatment, mental health
treatment, and a workforce development program. The court ordered that the
supervised release term would run concurrently with a three-year term
imposed in the separate firearm case, which also featured these treatment and
vocational program conditions.
Garza’s first argument here is that the district court failed to provide an
adequate explanation for running the revocation sentence consecutively to the
sentence for his firearm possession offense. Review is for plain error as Garza
failed to object on this basis in the district court. United States v. MondragonSantiago, 564 F.3d 357, 361 (5th Cir. 2009). Certainly more could have been
said, but it is clear from the record that the court thought a sentence within
the advisory range was appropriate. See Rita v. United States, 551 U.S. 338,
359 (2007). Accordingly, we affirm the revocation prison sentence.
Second, Garza challenges certain terms of his supervised release relating
to treatment and vocational programs. Specifically, he argues that the district
Date Filed: 01/10/2018
court improperly delegated judicial power to the probation officer to determine
the manner and duration of these programs. Garza also seeks elimination of
those parts of the workforce-development conditions that are in the written
judgment but were not explicitly mentioned by the district judge at sentencing.
We need not consider whether there was any error regarding these
conditions in the judgment we are reviewing. The challenged conditions also
apply to Garza’s concurrent three-year term of supervised release imposed in
the separate firearm case, recently affirmed. Garza, 2017 WL 6398007, at *1.
Because Garza’s sentence in the firearm case is valid, we need not review the
identical conditions in the separate sentence being challenged on this appeal.
See United States v. Stovall, 825 F.2d 817, 824 (5th Cir.), amended by 833 F.2d
526 (5th Cir. 1987).
Under this rule of judicial economy, called the “concurrent sentence
doctrine,” our decision not to review a sentence causes us to vacate the
challenged supervised release conditions in the revocation judgment requiring
participation in substance abuse treatment, mental health treatment, and a
workforce development program. Id. We remand with instructions to suspend
imposition of those conditions in the current revocation case.
SENTENCE AFFIRMED IN PART AND VACATED IN PART;
REMANDED WITH INSTRUCTIONS.
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