United States v. Gallardo

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 30, 2007
No. 06-51526
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
GARRY DAVID GALLARDO
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:87-CR-98-1
Before REAVLEY, JOLLY, and DENNIS, Circuit Judges.
PER CURIAM:*
Garry David Gallardo, federal prisoner # 41571-080, appeals the
revocation of the probation imposed following his 1987 guilty-plea conviction for
four counts of mailing child pornography in violation of 18 U.S.C. § 2252(a)(1).
He argues that the district court erred in denying his motions to quash the
revocation because he raises a jurisdictional challenge to the underlying
indictment which may be raised at any time. This court reviews whether a
*
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should not be published and is not precedent except under the limited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. 06-51526
district court lacked jurisdiction to revoke probation de novo. See United States
v. Jimenez-Martinez, 179 F.3d 980, 981 (5th Cir. 1999) (supervised release).
Gallardo may not use an appeal of the revocation of his probation to attack
his original sentence directly or collaterally in this proceeding. See United States
v. Hinson, 429 F.3d 114, 116 (5th Cir. 2005); United States v. Moody,
277 F.3d 719, 720-21 (5th Cir. 2001). Gallardo’s argument that his situation
falls within a “jurisdictional exception to this rule” is without merit. A defective
indictment is not a jurisdictional defect. United States v. Cotton, 535 U.S. 625,
630-31 (2002). Further, Gallardo waived all non-jurisdictional defects by
pleading guilty. See United States v. Smallwood, 920 F.2d 1231, 1240
(5th Cir. 1991).
AFFIRMED.
2