United States v. Garza ( 2022 )

Case: 21-20213 Document: 00516354960 Page: 1 Date Filed: 06/13/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 13, 2022
No. 21-20213
Lyle W. Cayce
Summary Calendar
Clerk
United States of America,
Plaintiff—Appellee,
versus
Richard Garza,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-232-1
Before Barksdale, Costa, and Engelhardt, Circuit Judges.
Per Curiam:*
Richard Garza pleaded guilty, pursuant to a plea agreement, to theft
concerning programs receiving federal funds, in violation of 18 U.S.C.
§ 666(a)(1)(A). In an appeal waiver in his plea agreement, Garza reserved
the right to present on appeal or in a 28 U.S.C. § 2255 motion a claim of
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-20213 Document: 00516354960 Page: 2 Date Filed: 06/13/2022
No. 21-20213
ineffective assistance of counsel (IAC). He was sentenced to, inter alia, a
within-Sentencing Guidelines term of 60 months’ imprisonment.
He asserts: his trial counsel rendered ineffective assistance by filing a
frivolous motion to withdraw his guilty plea; and the district court erred by
declining to grant him a reduction for acceptance of responsibility.
As noted supra, Garza reserved the right to claim IAC. Generally, that
claim “cannot be resolved on direct appeal when [it] has not been raised
before the district court [because] no opportunity existed to develop the
record on the merits of the allegations”. United States v. Montes, 602 F.3d
381, 387 (5th Cir. 2010) (citation omitted). Instead, such claims ordinarily
should be pursued on collateral review through the earlier-referenced 28
U.S.C. § 2255 motion. E.g., Massaro v. United States, 538 U.S. 500, 504–05
(2003) (explaining a § 2255 motion “is preferable to direct appeal” for IAC
claims); United States v. Villegas-Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999)
(explaining our court “do[es] not review [an IAC] claim . . . on direct appeal
unless the district court has first addressed it”). The record is not
sufficiently developed to allow us to make a fair evaluation of Garza’s IAC
claim. We therefore decline to consider it, without prejudice to collateral
review. E.g., United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014)
(declining consideration of IAC claim where record “undeveloped”).
Next, Garza contends his below-discussed sentencing challenge is not
barred by the appeal waiver in his plea agreement because the Government
breached its obligations under the plea agreement relating to its promises:
not to oppose a reduction for acceptance of responsibility under Guideline
§ 3E1.1; and to dismiss the remaining counts of the indictment.
Generally, “[w]hether the Government has breached a plea
agreement is a question of law” reviewed de novo. United States v. Purser, 747
F.3d 284, 290 (5th Cir. 2014). On the other hand, because Garza failed in
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district court to object to the Government’s claimed breach, review is limited
to plain error. E.g., United States v. Hinojosa, 749 F.3d 407, 413 (5th Cir.
2014). Under that standard, Garza must show a forfeited plain error (clear
or obvious error, rather than one subject to reasonable dispute) that affected
his substantial rights. E.g., Puckett v. United States, 556 U.S. 129, 135 (2009).
If he makes that showing, we have the discretion to correct such reversible
plain error, but generally should do so only if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings”. Id. (citation
omitted).
“The Government must strictly adhere to the terms and conditions of
its promises in a plea agreement.” United States v. Harper, 643 F.3d 135, 139
(5th Cir. 2011). And, if the Government breached the plea agreement, Garza
is not “bound by his agreement to forego an appeal”. United States v.
McNabb, 958 F.3d 338, 339 (5th Cir. 2020). General principles of contract
law are applied when a plea agreement’s terms are interpreted. United States
v. Long, 722 F.3d 257, 262 (5th Cir. 2013).
The unambiguous language of the plea agreement shows the
Government only agreed not to oppose a reduction for acceptance of
responsibility. The agreement does not: impose the additional requirement
that the Government must object to the lack of a reduction; or otherwise
dictate the Government’s actions if no such reduction is awarded.
Consistent with the plea agreement, the Government did not oppose a
reduction for acceptance of responsibility when it filed its response in district
court to Garza’s objections, nor did it take a position on such a reduction at
sentencing.
But, for the second claimed breach of the plea agreement, the
Government acknowledges it did not move to dismiss the remaining counts
of the indictment at sentencing, conceding clear or obvious error. We need
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not resolve whether Garza satisfies the remaining prongs of plain-error
review because his below-discussed sentencing claim lacks merit. See United
States v. Aguirre, 456 F. App’x 459, 462 (5th Cir. 2012) (stating that this court
need not resolve whether Government breached plea agreement because
defendant could not resolve remaining plain-error standard prongs).
Regarding the district court’s not awarding Garza a reduction for
acceptance of responsibility pursuant to Guideline § 3E1.1, our court “will
affirm the denial of a reduction for acceptance of responsibility unless it is
without foundation, a standard of review more deferential than the clearly
erroneous standard”. United States v. Lord, 915 F.3d 1009, 1017 (5th Cir.
2019) (citation omitted). Although the court addressed both Garza’s
obstruction-of-justice enhancement and his attempt to withdraw his guilty
plea as evidence that he was not entitled to an acceptance-of-responsibility
reduction, the facts surrounding Garza’s obstruction of justice alone provide
sufficient foundation for the denial of the reduction. Conduct resulting in an
obstruction-of-justice enhancement, pursuant to Guideline § 3C1.1,
“ordinarily indicates . . . defendant has not accepted responsibility for his
criminal conduct”. U.S.S.G. § 3E1.1, cmt. n.4.
Although there may be “extraordinary cases” in which both
adjustments apply, the district court did not find that to be the circumstance
here. See id. At sentencing, the court highlighted the seriousness of Garza’s
attempt “to suborn perjury before a United States grand jury”. Cf. United
States v. Rodriguez, 942 F.2d 899, 902–903 (5th Cir. 1991) (affirming court’s
determination that acceptance-of-responsibility reduction not warranted in
the light of defendant’s § 3C1.1 enhancement where he provided court,
through probation office, fraudulent birth certificate). The court’s
conclusion that extraordinary circumstances did not warrant an acceptance-
of-responsibility reduction is not without foundation in the record.
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Nonetheless, based on our review of the record and the briefs,
including the Government’s concession of clear or obvious error in its failure
to dismiss the remaining counts in the indictment, we agree that Garza is
entitled to limited relief. Accordingly, this case is REMANDED to district
court for the limited purpose of entering a corrected judgment reflecting
dismissal of the remaining counts in the indictment. The judgment is
AFFIRMED in all other respects.
AFFIRMED in part; REMANDED.
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