United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 22, 2007
Charles R. Fulbruge III
Clerk
No. 06-40325
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MARTINDALE F MCLYMONT
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-378
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Martindale F. McLymont appeals his sentence of 18 months of
imprisonment imposed after he pleaded guilty to failure to appear
in violation of 18 U.S.C. § 3146. McLymont also pleaded guilty
to conspiracy to possess with intent to distribute more than 100
kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), and 846, and he was sentenced to a consecutive term of
60 months of imprisonment for that crime.
*
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this opinion should not be published and is not precedent except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. 06-40325
-2-
McLymont argues that the district court erred in following
the grouping instructions for calculation of his guidelines range
of imprisonment set forth in the commentary to U.S.S.G. § 2J1.6.
McLymont did not object on this basis in the district court, and
our review is only for plain error. United States v. Mares, 402
F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
In 1996, we held that a district court did not err in
refusing to follow the grouping instructions in the commentary to
§ 2J1.6 because those instructions were unlawful. United States
v. Packer, 70 F.3d 357, 359-61 (5th Cir. 1996); see also Stinson
v. United States, 508 U.S. 36, 38 (1993) (“[C]ommentary in the
Guidelines Manual that interprets or explains a guideline is
authoritative unless it violates the Constitution or a federal
statute . . . .”). Other circuits disagreed. See United States
v. Gigley, 213 F.3d 503, 506 n.2 (10th 2000) (collecting cases).
Since our decision in Packer, the application note to
§ 2J1.6 was amended, but this has only confused the issue
further. While a sister circuit has claimed that the amendment
“definitely resolve[d] the previous conflict among circuits
regarding the grouping of failure to appear convictions,” United
States v. Kirkham, 195 F.3d 126, 133 (2d Cir. 1999) (dictum), at
least one appellate judge has argued that the amendment “does
nothing to remedy the inherent conflict” over the propriety of
the grouping instructions in the § 2J1.6 commentary. United
States v. Gigley, 213 F.3d 503, 509 (10th Cir. 2000) (Henry, J.,
No. 06-40325
-3-
dissenting in part). This court has held in an unpublished
opinion that a district court committed plain error by failing to
follow the grouping method set forth in the application note as
amended in 1998, but the opinion makes no mention of Packer or
the 1998 amendment. United States v. Posey, No. 99-10175, 1999
WL 824519, at *1 (5th Cir. Oct. 1, 1999) (unpublished); cf.
Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir.
1997) (“[O]ne panel of this court cannot overrule the decision of
another panel; such panel decisions may be overruled only by a
subsequent decisions of the Supreme Court or by the Fifth Circuit
sitting en banc.”).
Given that the second step in plain error review requires
“determin[ing] whether the error was ‘clear and obvious’ under
the law as it exists at the time of the appeal,” United States v.
Avants, 278 F.3d 510, 521 (5th Cir. 2002), McLymont cannot
overcome the confusion that now exists regarding the lawfulness
of the grouping instructions in the § 2J1.6 commentary to
establish that the district court’s error was “clear and obvious”
-- if the district court erred at all. Mares, 402 F.3d at 520.
After the briefs were filed, McLymont filed a pro se motion
in this court asking that his appointed counsel be relieved and
requesting leave to file a pro se brief. This court has held
that once an appellate brief has been filed, it is too late for a
defendant to file a motion to relieve counsel on appeal. See
No. 06-40325
-4-
United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).
Because McLymont’s motion is untimely, it is DENIED.
AFFIRMED; PRO SE MOTION DENIED.