United States v. Garza

Case: 20-10599 Document: 00516143462 Page: 1 Date Filed: 12/23/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 23, 2021
No. 20-10599 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Paul Garza,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-374-1
Before Owen, Chief Judge, and Haynes and Costa, Circuit Judges.
Per Curiam:*
Following a jury trial, Paul Garza was convicted of conspiracy to
possess methamphetamine with the intent to distribute and possession of
methamphetamine with the intent to distribute and was sentenced to 300
months of imprisonment. He now appeals.
*
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opinion should not be published and is not precedent except under the limited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.
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No. 20-10599
Garza first argues that the district court abused its discretion in
denying his motion for a continuance to substitute retained counsel for
appointed counsel. He complains that the denial forced him to proceed to
trial without counsel of his choice, in violation of the Sixth Amendment.
We review the denial of a motion for a continuance for an abuse of
discretion that seriously prejudices the defendant. See United States
v. Stalnaker, 571 F.3d 428, 439 (5th Cir. 2009). The totality of the
circumstances here, with consideration of fairness factors, demonstrates that
the district court’s denial of the motion for a continuance was neither
arbitrary nor unreasonable. See id.; see also United States v. Neba, 901 F.3d
260, 265 (5th Cir. 2018). Significantly, Garza’s request was not made until
after voir dire was completed, he offered no reason for replacing counsel or
for his delay, and he has not shown that he was seriously prejudiced by the
denial of his request. See Stalnaker, 571 F.3d at 439; United States v. Barnett,
197 F.3d 138, 144 (5th Cir. 1999); see also United States v. Gonzalez-Lopez, 548
U.S. 140, 152 (2006); United States v. Silva, 611 F.2d 78, 79 (5th Cir. 1980).
He therefore fails to show an abuse of discretion on the district court’s part.
See Stalnaker, 571 F.3d at 439.
Next, Garza asserts that the district court erred in failing to require
the Government to disclose the identity of its confidential source (CS) and
that the admission of testimony about the CS violated his Sixth Amendment
confrontation rights. Because he did not raise the issue in the district court,
review is limited to plain error. See Puckett v. United States, 556 U.S. 129, 135
(2009); see also United States v. Smith, 822 F.3d 755, 761 (5th Cir. 2016);
United States v. Young, 981 F.2d 180, 186-87 (5th Cir. 1992). Under the plain
error standard, Garza must show an error that is clear or obvious and that
affects his substantial rights. See Puckett, 556 U.S. at 135. If he makes such a
showing, this court has the discretion to correct the error but only if it
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No. 20-10599
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.Garza fails to demonstrate any clear or obvious error in connection
with his Sixth Amendment claim because, although he complains globally
about Special Agent Koenig’s testimony referencing information provided by
the CS, he points to no specific out-of-court testimonial statements by the
CS that were improperly admitted at trial in violation of his confrontation
rights. See Puckett, 556 U.S. at 135; see also Crawford v. Washington, 541 U.S.
36, 53-54 (2004). Because he fails to cite any authority in support of his claim
that the district court should have sua sponte ordered the disclosure of the
CS’s identity, Garza similarly fails to show clear or obvious error in
connection with the court’s failure to do so. See Puckett, 556 U.S. at 135; see
also United States v. Bishop, 603 F.3d 279, 281 (5th Cir. 2010). The claim fails
for the additional reason that Garza makes no attempt to show that the
district court’s alleged error affected his substantial rights. See Molina-
Martinez v. United States, --- U.S. ----, 136 S. Ct. 1338, 1343 (2016); Puckett,
556 U.S. at 135; see also United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir.
2010).
For the first time on appeal, Garza also challenges the search of his
bedroom as violative of the Fourth Amendment. Because he did not file
a Federal Rule of Criminal Procedure 12(b)(3) motion to suppress in the
district court, review of the claim is likewise limited to plain error. See United
States v. Vasquez, 899 F.3d 363, 372-73 (5th Cir. 2018).
The record establishes that the officers’ entry into and protective
sweep of Garza’s sister’s home was valid both because they had a reasonable
suspicion to believe the arrest warrant could be executed there and because
the owner gave consent for them to enter. See Maryland v. Buie, 494 U.S.
325, 327, 334 (1990); Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
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Because officers immediately observed evidence of drugs in plain view giving
rise to probable cause for a search warrant, and because officers did not
search the residence until the search warrant was obtained, there was no
Fourth Amendment violation. See Buie, 494 U.S. at 327; see also United States
v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005) (explaining plain view
doctrine). Consequently, Garza fails to show that the admission of the
evidence ultimately uncovered in his room was error, plain or otherwise. See
Puckett, 556 U.S. at 135.
Garza additionally complains that the district court erred in accepting
the Presentence Report’s drug-quantity finding and assessment of a two-
level firearms enhancement, which he asserts were not supported by a
preponderance of the evidence. However, because his argument “does not
extend beyond [a] conclusory assertion,” the sentencing challenges are
deemed abandoned. Garrido-Morato v. Gonzales, 485 F.3d 319, 321 n.1 (5th
Cir. 2007); see also Nicholas Acoustics & Specialty Co. v. H & M Const. Co., 695
F.2d 839, 846-47 (5th Cir. 1983); FED. R. APP. P. 28(a)(8)(A).
Finally, Garza asserts that trial counsel was ineffective in numerous
ways. He did not raise these claims before the district court, and the record
does not provide sufficient detail to allow the court to assess counsel’s
effectiveness at this stage. See United States v. Isgar, 739 F.3d 829, 841 (5th
Cir. 2014). Accordingly, we decline to consider these claims without
prejudice to their being raised in a 28 U.S.C. § 2255 motion. See id.For the foregoing reasons, the district court’s judgment is
AFFIRMED.
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