United States v. Barrera-Cruz ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 18, 2006
Charles R. Fulbruge III
Clerk
No. 05-30791
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAUL BARRERA-CRUZ,
Defendant-Appellant.
consolidated with
_________________
No. 05-30896
Summary Calendar
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LINNIE W. SIMON,
Defendant-Appellant.
No. 05-30791
c/w No. 05-30896
-2-
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Appeals from the United States District Court
for the Western District of Louisiana
No. 5:04-CR-50071-1
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Codefendants Saul Barrera-Cruz and Linnie Simon appeal the
sentences imposed following their guilty-plea convictions of con-
spiracy to distribute one kilogram or more of heroin in violation
of 21 U.S.C. § 846. Barrera-Cruz complains that the district court
did not consider the appropriate 18 U.S.C. § 3553(a) factors, but,
because he was sentenced within a properly calculated guidelines
range, consideration of the appropriate factors is inferred. See
United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied,
126 S. Ct. 43 (2005).
Barrera-Cruz next conclusionally states that the district
court erred in ordering his sentence to run consecutively to, rath-
er than concurrently with, the federal sentence he was already
serving. Even if the instant sentence was imposed consecutively to
his undischarged sentence, he has abandoned by failing to brief any
argument challenging the presumption of correctness that attaches
“to a consecutive sentence imposed within the parameters of the
advisory federal guidelines.” United States v. Candia, 454 F.3d
*
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opinion should not be published and is not precedent except under the limited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. 05-30791
c/w No. 05-30896
-3-
468, 473 (5th Cir. 2006); see United States v. Thibodeaux, 211 F.3d
911, 912 (5th Cir. 2000).
This court lacks jurisdiction to consider Barrera-Cruz’s argu-
ment that the district court erred in failing to depart downwardly
based on his substantial assistance to the government. See United
States v. Hernandez, 457 F.3d 416, 424 & n.5 (5th Cir. 2006). Bar-
rerra-Cruz has shown no error in the judgment, which is therefore
affirmed.
Simon argues that his Sixth Amendment rights were violated
when he was forced to proceed pro se at sentencing without a suffi-
cient colloquy to establish that he knowingly and unequivocally
waived his right to counsel. We agree. Because the sentencing
transcript in Simon’s case contains no Faretta colloquy, see Faret-
ta v. California, 422 U.S. 806, 833-35 (1975), demonstrating that
the court warned him of the “perils and disadvantages of self-
representation,” particularly before attempting “to navigate the
Guidelines’ various potentialities on his own,” we vacate Simon’s
sentence and remand for resentencing. See United States v. Virgil,
444 F.3d 447, 454, 456 (5th Cir. 2006). That being so, we do not
address the other sentencing issues Simon now raises. See United
States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).
No. 05-30791
c/w No. 05-30896
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The judgment of sentence in No. 05-30791 is AFFIRMED. The
judgment of sentence in No. 05-30896 is VACATED and REMANDED for
resentencing.