UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 95-40992
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORIO GARZA-NEVAREZ,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(B-95-CR-75-1)
September 17, 1996
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Defendant Gregorio Garza-Nevarez (“Garza”) appeals from the
district court’s refusal to order his federal sentence to run
concurrently with his state sentences. Finding no reversible
error, we affirm.
Garza was indicted and pleaded guilty to entering the country
after deportation, in violation of 8 U.S.C. § 1326. Prior to this,
*
Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.
Garza had pleaded guilty to state charges of possession and
delivery of marijuana, for which he received concurrent ten-year
probated sentences. Approximately three years later, Garza was
arrested for possession and delivery of cocaine, and released by
the state court on bond. Garza was subsequently deported for
having a state felony record, and was later arrested in the United
States for failure to appear in the cocaine cases. He pleaded
guilty to two counts of delivery of a controlled substance in the
cocaine cases and was sentenced to serve twelve years for each
count. Garza’s probation in the marijuana cases was revoked, and
he was sentenced to ten years on each count.
As to Garza’s sentence in this case, the Presentence Report
(“PSR”) recommended that he be sentenced to 77 months in prison,
and, in light of U.S.S.G. § 5G1.3(c), that the sentence run
concurrently to any undischarged state term. The Government filed
a motion for downward departure pursuant to U.S.S.G. § 5K1.1, which
the district court granted. Accordingly, the district court
sentenced Garza to 47 months in prison. Counsel for Garza then
asked the district court whether it would consider following the
recommendation of the PSR that the sentence run concurrently with
Garza’s state sentences. The district court refused to do so.2
2
The discussion at sentencing was as follows:
[COUNSEL]: Your Honor, the recommendation, I believe, by Probation is
that this run concurrent with the State time. Would the Court consider
making that recommendation.
THE COURT: It is not really up to the Court. It is really up to the State
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Garza argues that the district court erred when it failed to
consider U.S.S.G. § 5G1.3 and 18 U.S.C. § 3553(a) before ordering
that his sentence run consecutively to the undischarged terms of
his state sentences. We have previously held that, where
§ 5G1.3(c) was found to be applicable, it was reversible error for
the district court not to consider the provision, its methodology,
and explain why it was not employed. United States v. Hernandez,
64 F.3d 179, 183-84 (5th Cir. 1995). By failing to properly object
at sentencing, however, Garza has waived his right to full
appellate review. “A party must raise a claim of error with the
district court in such a manner so that the district court may
correct itself and thus, obviate the need for our review.” United
States v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995) (internal
quotation marks omitted), cert. denied, __ U.S. __, 116 S. Ct. 963,
133 L. Ed. 2d 884 (1996). Although Garza’s counsel asked the
district court whether it would consider following the PSR’s
recommendation that the sentences run concurrently, counsel did not
offer any particular legal basis for doing so, and did not cite the
relevant Sentencing Guidelines provision. Moreover, when from the
district court’s response it appeared, as Garza argues on appeal,
that the court believed it was without power to order the sentences
Court as you well know.
I think you are better off not even asking me to do anything. Leave it up
to the State Court, because I would not be inclined to do that. For very obvious
reasons.
[COUNSEL]: Yes, sir.
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to run concurrently, Garza’s counsel did not attempt to inform the
court otherwise or to lodge any objection. Accordingly, we find
that Garza has failed to preserve the claimed error, and we thus
review only for plain error. See id. at 1433-34 (reviewing for
plain error where defendant only made a general objection).
Under plain error review, we will remedy the error only in the
most exceptional cases. United States v. Calverley, 37 F.3d 160,
162 (5th Cir. 1994) (en banc), cert. denied, __ U.S. __, 115 S. Ct.
1266, 131 L. Ed. 2d 145 (1995). The appellant has the burden to
show that there is an error, that it is “clear” or “obvious,” and
that it affects his substantial rights. United States v. Olano,
507 U.S. 725, __, 113 S. Ct. at 1777-79, 123 L. Ed. 2d 508 (1993).
Even where the appellant carries his burden, the Supreme Court has
directed that we exercise our discretion to correct such a
forfeited error only if the error “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.”
Id. at 735-36, 113 S. Ct. at 1779 (internal quotation marks
omitted).
Even if we assume that the district court erred by not
considering § 5G1.3(c) and explaining why it was not employed, we
find that Garza has failed to show that this error amounted to
“plain error.” The 1995 version of § 5G1.3(c) provides that in any
case not covered under subsections (a) or (b), “the sentence for
the instant offense may be imposed to run concurrently, partially
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concurrently, or consecutively to the prior undischarged term of
imprisonment to achieve a reasonable punishment for the instant
offense.” U.S.S.G. § 5G1.3(c).3 As we noted in United States v.
Torrez, 40 F.3d 84 (5th Cir. 1994), this provision and the
methodology suggested in application note 3 are permissive only.
40 F.3d at 87. In other words, even if the district court
considers the provision and its application note, it is free to
decline to apply them. Id. We note that the district court in
this case expressed its disinclination to have the sentences run
concurrently. Accordingly, as in Torrez, we find that the
Defendant has not made the requisite showing of prejudice. See id.
at 88. We therefore do not need to address whether the alleged
error in this case is of the type that seriously affects the
“fairness, integrity or public reputation of judicial proceedings.”
For the foregoing reasons, we AFFIRM.
3
In addition, 18 U.S.C. § 3584 directs the district court, when
considering whether to impose concurrent or consecutive terms, to consider the
factors set forth in § 3553(a). In turn, 18 U.S.C. 3553(a) lists, as one of the
factors to be considered, any pertinent policy statements issued by the
Sentencing Commission. We have read this directive to include the policy
statement found at U.S.S.G. § 5G1.3(c). Hernandez, 64 F.3d at 182-83.
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