United States v. Marcial Castro , 435 F. App'x 407 ( 2011 )

Case: 11-10133 Document: 00511563042 Page: 1 Date Filed: 08/05/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 5, 2011
No. 11-10133
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARCIAL CASTRO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:10-CR-204-1
Before BENAVIDES, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
Marcial Castro pleaded guilty to one count of unlawful reentry and was
sentenced to 120 months in prison. He now appeals, arguing that the district
court erred by ordering that his federal sentence run consecutively to any
sentence that might be imposed in a pending state criminal case. The
Government has moved to dismiss the appeal based on a waiver contained in
Castro’s post-plea sentencing agreement, or for summary affirmance on the basis
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-10133 Document: 00511563042 Page: 2 Date Filed: 08/05/2011
No. 11-10133
of binding circuit precedent. Alternatively, the Government seeks an extension
of time to file a brief. Castro argues that the waiver does not bar the appeal.
We need not reach the disputed waiver issue because, as Castro concedes,
his argument is foreclosed by United States v. Brown, 920 F.2d 1212, 1216-17
(5th Cir. 1991), abrogated on other grounds by United States v. Candia, 454 F.3d
468, 472-73 (5th Cir. 2006), in which we held that a district court may order a
term of imprisonment to run consecutively to a yet-to-be-imposed state sentence.
Despite Castro’s arguments that Brown was incorrectly decided, Brown remains
the law of this circuit, as we held in United States v. Setser, 607 F.3d 128, 131-32
(5th Cir. 2010), cert. granted, 2011 WL 2297806 (June 13, 2011) (No. 10-7387).
Although the Supreme Court has granted a writ of certiorari in Setser, this court
is bound to follow precedent even when certiorari has been granted. See United
States v. Lopez-Velasquez, 526 F.3d 804, 808 n.1 (5th Cir. 2008).
The Government’s motion for summary affirmance is GRANTED, and the
judgment of the district court is AFFIRMED. The Government’s motions to
dismiss and, alternatively, for an extension of time are DENIED.
2