United States v. Garza , 116 F. App'x 478 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 8, 2004
Charles R. Fulbruge III
Clerk
No. 03-50400
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS GARZA, JR., also known as Jose Luis Garza,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Western District of Texas
USDC No. W-00-CR-94-2
--------------------
Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.
PER CURIAM:*
Jose Luis Garza, Jr., also known as Jose Luis Garza, appeals
his jury conviction and sentence for possession with intent to
distribute five kilograms or more of cocaine. Garza seeks a
remand to the district court to enable it to review his motion
for new trial based on newly discovered evidence. The Government
agrees that remand is appropriate in this case.
The district court erred when it denied Garza’s timely
*
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this opinion should not be published and is not precedent except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.
1
motion for new trial for lack of jurisdiction because of the
pending appeal.1 Accordingly, this case is remanded to the
district court for the limited purpose of considering Garza’s
motion for new trial based on newly discovered evidence.2 On
remand, the district court should consider Garza’s motion for new
trial “upon an amplified record and thereupon make appropriate
findings of fact and conclusions of law as to whether the
conviction of [Garza] should be permitted to stand.”3 The
district court may deny the motion or, “if the district court
thinks that the motion should be granted, it should certify that
determination to the appellate court in order that the appellate
court may entertain a motion to remand.”4
Garza also requests that he be appointed counsel to assist
him in obtaining the necessary depositions and affidavits from
material witnesses and to represent him at the hearing on his
motion for new trial. Accordingly, the district court is
directed to appoint counsel to represent Garza if it determines
that Garza qualifies for appointed counsel pursuant to 18 U.S.C.
1
See United States v. Redd, 355 F.3d 866, 880-81 (5th Cir.
2003).
2
See id. at 881 n.15; see also United States v. Devoe, 489
F.2d 158, 160-61 (5th Cir. 1974).
3
DeVoe, 489 F.2d at 160-61.
4
United States v. Fuentes-Lozano, 580 F.2d 724, 726 (5th Cir.
1978).
2
§ 3006A or if the interests of justice so require.5
This court retains jurisdiction over the appeal except for
the purposes of the limited remand stated above.
LIMITED REMAND.
5
See 18 U.S.C. § 3006A; United States v. Whitebird, 55 F.3d
1007, 1010-11 (5th Cir. 1995).
3