IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-40431
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ASCENCION GARZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-96-CR-314-6
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June 26, 1998
Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.
Per Curiam:*
Ascencion Garza appeals his guilty-plea conviction for
conspiracy to possess with intent to distribute in excess of 1,000
kilograms of marijuana. On appeal, Garza asserts, inter alia, that
the statements of co-conspirators on which the district court
relied in part in sentencing Garza to 300 months imprisonment “are
not part of the record on appeal and thus unreviewable and cannot
support the District Court’s finding of relevant conduct based on
*
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this opinion should not be published and is not precedent except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.
the preponderance of the evidence.”
The appellate briefs indicate that some disagreement may exist
with respect to whether statements of Garza’s co-conspirators were
actually introduced into the record of Garza’s sentencing hearing.
In any event, these statements were not physically included in the
record sent to this Court on appeal. Accordingly, we vacate the
defendant’s sentence and remand the case to the district court with
instructions for it to determine whether the statements in question
were actually admitted into evidence at sentencing and to
resentence the defendant in light of its determination. If the
statements have been properly admitted into evidence at Garza’s
sentencing hearing, they shall be made part of the record of this
case for purposes of appeal. See FRAP 10 (e). We reserve Garza’s
right to appeal from the district court’s determination and
resentencing.
Accordingly Garza’s sentence is VACATED and the case is
REMANDED to the district court with instructions.