U.S. v. Garza

Full title: UNITED STATES of America, Plaintiff-Appellant v. Noe Nicolas GARZA…

Court: United States Court of Appeals, Fifth Circuit

Date published: Aug 7, 2009

340 F. App'x 243 (5th Cir. 2009)

Opinion

No. 08-40385 Summary Calendar.

August 7, 2009.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellant.

Noe Garza, Bastrop, TX, pro se.

Appeal from the United States District Court for the Southern District of Texas, USDC Nos. 2:03-CR-70-1, 2:07-CV-342.

Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.

PER CURIAM:[fn*] [fn*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Noe Nicolas Garza, federal prisoner # 03659-025, pleaded guilty in 2003 to one count of conspiracy to possess with intent to distribute cocaine and was sentenced to 293 months in prison. On appeal, we rejected under plain error review his argument that the district court's findings of fact violated the Sixth Amendment in light of United States v. Booker. ¹ Garza then petitioned for habeas relief, under 28 U.S.C. § 2255, raising claims of ineffective assistance of counsel related to counsel's conduct at sentencing, including counsel's failure to preserve Booker error. The district court denied relief. A judge of this court granted Garza a certificate of appealability on one issue: whether counsel's failure to anticipate the decision in Booker and preserve error by making an objection pursuant to Apprendi v. New Jersey ² — a failure that relegated Garza to plain error review on appeal — constituted ineffective assistance of counsel. We now affirm the district court's judgment.

1 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

2 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Our recent opinion in United States v. Fields is dispositive.³ As in Fields, the district court sentenced Garza prior to the Supreme Court's ruling in Booker. ⁴ Before Booker our precedent foreclosed application of the Sixth Amendment rule of Apprendi to factual determinations under the Sentencing Guidelines.⁵ As Fields reminds, the law in this circuit makes clear that counsel was not required to make meritless objections under then-existing precedent, ⁶ anticipate changes in the law, or raise every potentially meritorious claim.⁷ Thus, as we held in Fields, Garza's counsel did not render constitutionally ineffective assistance by failing to anticipate Booker's application of Apprendi to the Sentencing Guidelines and the resulting "sea-change" in sentencing.⁸ To the extent that Garza raises other arguments not included within the scope of our order granting the certificate of appealability, we do not consider them.⁹ Judgment of the district court is AFFIRMED.

3 565 F.3d 290, 293-97 (5th Cir. 2009).

4 Fields, 565 F.3d at 295

5 See Fields, 565 F.3d at 295; United States v. Randle, 304 F.3d 373, 378 (5th Cir. 2002).

6 Fields, 565 F.3d at 295, 297.

7 Fields, 565 F.3d at 294, 296-97.

8 Id. at 295-97.

9 See Neville v. Dretke, 423 F.3d 474, 478 (5th Cir. 2005).