United States v. Galvan ( 2006 )

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that this opinion should not be published and is not precedent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.