United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 25, 2006
Charles R. Fulbruge III
Clerk
No. 03-41454
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOE NICOLAS GARZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:03-CR-70-1
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Noe Nicolas Garza appeals the district court’s sentence
imposed following his guilty-plea conviction for conspiracy to
possess with intent to distribute cocaine. Finding no error, we
affirm.
Garza first argues that his sentence, which was enhanced
based on facts determined by the judge, violates the Sixth
Amendment rule announced in United States v. Booker, 543 U.S. 220
(2005). Garza did not raise this objection in the district
*
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this opinion should not be published and is not precedent except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.
No. 03-41454
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court. Accordingly, we review for plain error. See United
States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005). Garza cannot
show that the error in this case affected his substantial rights
because there is nothing in the record to indicate that the
district court, operating under advisory Sentencing Guidelines,
would have imposed a lower sentence. See id.
Garza next contends that he should have received a three-
level reduction for acceptance of responsibility and that the
denial of the reduction constitutes a breach of the plea
agreement and rendered his plea involuntary. Garza’s contentions
are wholly without merit, if not frivolous.
This court reviews a district court’s finding on acceptance
of responsibility with even greater deference than is given under
the clearly erroneous standard. See United States v.
Angeles-Mendoza, 407 F.3d 742, 753 (5th Cir. 2005). The district
court denied the reduction after finding that Garza engaged in
obstruction of justice by attempting to influence the testimony
of other inmates so that he could obtain a U.S.S.G. § 5K1.1
reduction. Garza does not challenge this finding, which is, in
any event, amply supported by the evidence. Conduct which
results in an enhancement under U.S.S.G. § 3C1.1 for obstruction
of justice “ordinarily indicates that the defendant has not
accepted responsibility for his criminal conduct” except in
“extraordinary cases.” § 3E1.1, comment. (n.4). The court
concluded that this was not an extraordinary case and Garza cites
No. 03-41454
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no evidence or law to the contrary. He has failed to demonstrate
any error by the district court.
Garza’s contentions that the plea agreement was breached and
that his plea was involuntary are likewise wholly without merit.
As for his claim of breach, the terms of the plea agreement made
it clear that the recommendation of a three-level reduction was
conditioned upon Garza’s truthful rendition of facts at
rearraignment, sentencing and during the presentence interview.
Further, Garza he was required to refrain from committing any
crimes. Garza’s lack of truthfulness at sentencing and his
conduct in attempting to obstruct justice negated any obligation
of the Government to move for a reduction.
With respect to the voluntariness of the plea, Garza’s
assertion that he reasonably believed that he would receive a
reduction for acceptance of responsibility is contrary to his
sworn testimony at rearraignment that he understood that the
district court was not bound by the plea agreement and that the
court would determine his sentence without regard the terms of
the plea agreement. His claim that his plea was not voluntary is
without merit.
Finally, Garza seeks leave to have his counsel relieved and
to proceed pro se on appeal. Garza’s motion, filed nine months
after his counsel filed a brief on Garza’s behalf, is not timely.
See United States v. Wagner, 158 F.3d 901, 902 (5th Cir. 1998).
No. 03-41454
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For the foregoing reasons, the judgment of the district
court is affirmed. Garza’s motion to proceed pro se is denied.
AFFIRMED; MOTION TO PROCEED PRO SE DENIED.