United States v. Howard

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 5, 2000
• Docket: 99-20421
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-20421 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARC T. HOWARD,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. H-98-CR-160-1 _________________________________________________________________ June 1, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Marc T. Howard appeals his jury trial conviction and sentence

for possession with the intent to distribute cocaine. See 21

U.S.C. § 841(a), (b)(1)(A)(ii)(II).

Howard argues that counsel rendered ineffective assistance at

the rearraignment, when Howard entered his guilty plea, based on

counsel’s failure to inform him of the increased penalties he faced

due to his prior felony drug conviction and the government’s intent

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. to seek an enhanced sentence through its 21 U.S.C. § 851 filing.

Howard asserts that he understood through counsel that he was

facing no more than eight years’ imprisonment. The district

court’s grant of Howard’s motion to withdraw his guilty plea mooted

any issue arising from counsel’s assistance at the guilty plea

hearing. See United States v. Watch, 7 F.3d 422, 429 (5th Cir.

1993).

Howard argues that his rights to due process under the Fifth

and Fourteenth Amendments were violated by the court’s vacation of

its order denying Howard’s motion to withdraw his guilty plea and

setting the cause for trial, which resulted in a more onerous

sentence than what Howard was lead to believe at rearraignment when

he entered his guilty plea. Howard has not demonstrated error,

plain or otherwise. See United States v. Calverley, 37 F.3d 160,

162-64 (5th Cir. 1994) (en banc).

Howard argues that the district court erred in denying his

motion to suppress the cocaine seized from the luggage of his

codefendant. Howard’s motion did not seek the suppression of any

physical evidence. He sought suppression of his verbal statements.

In the district court, he expressly conceded his lack of standing

to challenge the seizure of the cocaine. Consequently, Howard

waived the Fourth Amendment issue. See United States v. Olano, 507

2 U.S. 725, 733 (1993); United States v. Chavez-Valencia, 116 F.3d

127, 129 (5th Cir. 1997).

A F F I R M E D.