United States v. Garza

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 97-40467 (Summary Calendar) __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORGE LUIS GARZA,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas (96-CR-314-5) - - - - - - - - - - April 5, 2000

Before POLITZ, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Jorge Luis Garza appeals his guilty-plea

conviction for conspiracy to possess with intent to distribute in

excess of 1,000 kilograms of marijuana. On appeal, Garza asserts,

inter alia, that the statements of co-conspirators relied on by the

district court to calculate the amount of drugs attributable to him

were not made part of the record on appeal, and thus cannot “be

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. considered as part of his relevant conduct in determining his base

offense level.”

The statements of Garza’s co-conspirators in question were not

physically included in the record sent to us on appeal.

Accordingly, we vacate Garza’s sentence and remand the case to the

district court with instructions for it to determine whether the

statements in question were actually admitted into evidence at

sentencing and to resentence the defendant in light of its

determination. If the statements were duly admitted into evidence

at Garza’s sentencing hearing, they shall be made part of the

record of this case for purposes of appeal. See Fed. R. App. P.

10(e). We reserve to Garza the right to appeal from the district

court’s determination and resentencing.

Accordingly Garza’s sentence is vacated, and the case is

remanded to the district court.

VACATED AND REMANDED.