United States v. Garza

Opinion

Case: 24-50043 Document: 78-1 Page: 1 Date Filed: 04/01/2025

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 24-50043 Summary Calendar FILED ____________ April 1, 2025 Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee,

versus

Albert Garza,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 3:73-CR-361-1 ______________________________

Before Graves, Willett, and Wilson, Circuit Judges. Per Curiam: * Albert Garza filed a pro se motion to reduce the life sentence imposed following his 1973 conviction for killing someone while attempting to rob a bank in El Paso. See Garza v. United States, 498 F.2d 1066, 1067 (5th Cir. 1974). While Garza styled his motion as being brought under Federal Rule of Criminal Procedure 35(b), the district court construed it as a motion under

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 24-50043 Document: 78-1 Page: 2 Date Filed: 04/01/2025

No. 24-50043

18 U.S.C. § 4205(g). The district court denied the motion on the grounds that such a request can only be brought by the Bureau of Prisons (BOP). See 18 U.S.C. § 4205(g). Proceeding pro se, Garza argues that the district court erred in denying his motion and that he should be granted compassionate release under Rule 35(b). However, because Garza committed his crime prior to November 1, 1987, he was required to file his Rule 35(b) motion within 120 days of his sentence being imposed. See United States v. Watson, 868 F.2d 157, 159 (5th Cir. 1989); Fed. R. Crim. P. 35 (text following “Rule Applicable to Offenses Committed Prior to Nov. 1, 1987”). The district court did not err by declining to consider Garza’s motion under Rule 35(b), filed decades after his sentence was imposed. As for the court’s conclusion Garza was not entitled to file his own § 4205(g) motion, Garza appears to assert that the filing requirement of § 4205 denies him equal protection because the Fair Sentencing Act now permits prisoners who committed their crimes after November 1, 1987, to file motions for compassionate release under 18 U.S.C. § 3582(c), while he has no avenue to do so. We review this argument for plain error. See United States v. Duhon, 541 F.3d 391, 396 (5th Cir. 2008). Garza, however, has not made any showing that the purported disparity was the result of any type of discriminatory intent or purpose. See Sonnier v. Quarterman, 476 F.3d 349, 369 (5th Cir. 2007). Accordingly, Garza has not demonstrated any error, let alone a plain one. See Puckett v. United States, 556 U.S. 129, 135 (2009). Garza also seeks the appointment of counsel. We deny this motion because the interest of justice does not require it. See 5th Circuit Plan under the Criminal Justice Act, § 3(B). Accordingly, the judgment of the district court is AFFIRMED, and Garza’s motion for the appointment of counsel is DENIED.