United States v. Garza

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 11, 2006

Charles R. Fulbruge III
Clerk
No. 05-50149
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OSCAR JAIME GARZA,

Defendant-Appellant.

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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CV-76-AML
USDC No. 2:02-CR-539-1-AML
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

Oscar Jaime Garza, federal prisoner # 30078-180, appeals

the district court’s denial of his 28 U.S.C. § 2255 motion

challenging his guilty-plea conviction for conspiracy to possess

with intent to distribute marijuana. He argues that the district

court violated his Sixth Amendment rights by imposing a sentence

based on the court’s findings that the offense involved more

marijuana than he admitted in his factual basis and that he was a

leader or organizer in the offense. He argues that his sentence

*
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this opinion should not be published and is not precedent except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. 05-50149
-2-

should be vacated in view of United States v. Booker, 543 U.S.

220 (2005). The district court granted a certificate of

appealability on the issue “[w]hether the holding in Booker

applies retroactively to a § 2255 collateral attack of a

sentence.” We have now held that Booker is not retroactively

applicable to an initial § 2255 motion. United States v. Gentry,

432 F.3d 600, 604-05 (5th Cir. 2005). Accordingly, the district

court’s judgment is AFFIRMED.