IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-40467
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE LUIS GARZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(96-CR-314-5)
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April 5, 2000
Before POLITZ, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Jorge Luis 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 relied on by the
district court to calculate the amount of drugs attributable to him
were not made part of the record on appeal, and thus cannot “be
*
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that this opinion should not be published and is not precedent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.
considered as part of his relevant conduct in determining his base
offense level.”
The statements of Garza’s co-conspirators in question were not
physically included in the record sent to us on appeal.
Accordingly, we vacate Garza’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 were duly admitted into evidence
at Garza’s sentencing hearing, they shall be made part of the
record of this case for purposes of appeal. See Fed. R. App. P.
10(e). We reserve to Garza the 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.
VACATED AND REMANDED.
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