United States v. Galvan

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 13, 2006
• Docket: 05-41332
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 13, 2006

Charles R. Fulbruge III Clerk No. 05-41332 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GUILLERMO GALVAN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 2:04-CR-82-ALL --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Guillermo Galvan appeals from his resentencing following our

earlier remand of his case. See United States v. Galvan, 133 F.

App’x 154 (5th Cir.), cert. denied, 126 S. Ct. 496 (2005). In

our earlier opinion, we found that the district court plainly

erred when it imposed Galvan’s sentence under a mandatory

guidelines scheme and that this error affected Galvan’s

substantial rights as it appeared the district court would have

imposed a lighter sentence under an advisory guidelines scheme.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41332 -2-

Galvan, 133 F. App’x at 156. We remanded the case for

resentencing.

On appeal following remand, Galvan does not challenge his

newly-imposed sentence, but rather raises the same issues already

decided by this court in his first appeal. Galvan correctly

concedes that none of the exceptions to the law-of-the-case

doctrine are present in this appeal and that the law-of-the-case

doctrine prohibits this court from considering the issues raised

by Galvan in this appeal. See United States v. Becerra, 155 F.3d

740, 752-53 (5th Cir. 1998); Burroughs v. FFP Operating Partners,

70 F.3d 31, 33 (5th Cir. 1995).

Galvan nonetheless asserts that he raises these issues to

preserve them for review by the Supreme Court. However, the

Supreme Court denied Galvan’s petition for certiorari in his

original appeal. See Galvan v. United States, 126 S. Ct. 496

(2005). The appeal is devoid of merit and is dismissed as

frivolous.

The Federal Public Defender’s motion to withdraw is denied

because it fails to establish “that there is a conflict of

interest or other most pressing circumstances or that the

interests of justice otherwise require relief of counsel.” Fifth

Circuit Plan Under the CJA, § 5(B); see United States v. Trevino,

992 F.2d 64, 65 (5th Cir. 1993). The Federal Public Defender’s

motion to seal is granted.

APPEAL DISMISSED AS FRIVOLOUS; MOTION TO WITHDRAW DENIED; MOTION TO SEAL GRANTED.