United States v. Garza

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 16, 2003
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 02-41143
_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

VICTOR GARZA,

Defendant - Appellant.

_________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Texas
USDC No.: 6:92-CR-30-5
_________________________________________________________________

Before JOLLY and WIENER, Circuit Judges, and ROSENTHAL, District
Judge.*

E. GRADY JOLLY, Circuit Judge:**

Victor Garza, Texas state prisoner #691294, appeals the

district court’s ruling on his “Motion for Transfer to a Federal

Prison Facility.” Because the district court’s ruling is a non-

binding recommendation to the Bureau of Prisons, it is not an

appealable order and we lack jurisdiction. The appeal is therefore

DISMISSED.

*
District Judge of the Southern District of Texas, sitting by
designation.
**
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this opinion should not be published and is not precedent except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.
I

In 1994, Garza pleaded guilty in federal court to possession

with the intent to distribute marijuana. He was sentenced to 294

months’ imprisonment. Prior to Garza’s federal sentencing hearing,

he was arrested by Texas authorities for murder. After he was

sentenced in federal court, Garza was sentenced in state court to

20 years’ imprisonment for the state murder conviction. The state

court ordered Garza’s sentence to run concurrently with his federal

sentence. Garza appealed his federal conviction and sentence to

this court, arguing that the district court should have sua sponte

refused to accept his guilty plea. On March 23, 1995, this court

affirmed Garza’s judgment and conviction in an unpublished opinion.

United States v. Garza, 51 F.3d 1044 (5th Cir. 1995) (table).

On April 8, 2002, Garza filed a “Motion for Transfer to a

Federal Prison Facility.” Garza argued that he had never been

transferred from state custody to federal custody, and he requested

that the district court order the Texas Department of Criminal

Justice to deliver him to federal authorities to serve his federal

sentence. The Government responded that the parties had

contemplated that the state and federal sentences would be served

concurrently and, therefore, it recommended that the court enter a

judgment and sentence nunc pro tunc ordering Garza’s federal

sentence to begin on August 26, 1994, the date that he was

sentenced in federal court, and further ordering that it run

concurrently with his state sentence.

2
On July 16, 2002, the district court entered an order

partially granting Garza’s motion. The court ordered that a

judgment and sentence nunc pro tunc be entered designating the

Texas Department of Criminal Justice, Institutional Division, as

primary custodian for service of Garza’s federal sentence;

reflecting the date that service of Garza’s federal sentence began

as August 26, 1994; and directing that Garza’s federal sentence run

concurrently with his state sentence. The court ordered, further,

that Garza’s judgment and sentence reflect that, in the event that

he concluded the service of his state sentence with time remaining

to be served on his federal sentence, he would be delivered to the

custody of the United States Marshal for transportation to the

Bureau of Prisons to complete the service of his federal sentence.

Garza’s untimely notice of appeal from the district court’s ruling

was determined to have been due to excusable neglect.

Garza, pro se, does not contest the substance of the district

court’s ruling on his Motion for Transfer to a Federal Prison

Facility. Instead, he seeks to turn this appeal into a collateral

attack on his federal and state convictions. He argues that he was

“let [sic] to believe that he would serve his state sentence

concurrently with his federal sentence in federal custody,” and,

therefore, both the federal government and the State of Texas

breached the federal and state plea agreements. He thus contends

that his guilty pleas in state and federal court were involuntary

3
and that he should be allowed to withdraw them. Obviously, Garza

cannot raise these issues for the first time in this appeal.

Even more fundamentally, however, this court lacks

jurisdiction to consider Garza’s appeal because our precedents make

clear that the district court’s ruling on his Motion for Transfer

to a Federal Prison Facility is a non-binding recommendation to the

Bureau of Prisons. See 18 U.S.C. § 3621(b) (Bureau of Prisons

determines place of confinement). Therefore, it is not an

appealable order. See United States v. Pineyro, 112 F.3d 43, 44-46

(2d Cir. 1997) (district court’s order recommending that Bureau of

Prisons not grant Pineyro credit for time served in state prison

was “only a non-binding recommendation” and appeal “must be

dismissed for lack of jurisdiction”); United States v. De La Pena-

Juarez, 214 F.3d 594, 599-600 (5th Cir. 2000) (district court’s

order requiring as condition of sentence that fifty percent of

defendant’s prison earnings be garnished to support his children

and that defendant be housed in a facility close to Houston were

non-binding recommendations to Bureau of Prisons “and, accordingly,

it is not an order from which [defendant] can appeal”).

III

For the foregoing reasons, the appeal is DISMISSED for lack of

jurisdiction.

APPEAL DISMISSED.