United States v. Rogelio Garza

Case: 09-40910 Document: 00511177911 Page: 1 Date Filed: 07/19/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 19, 2010
No. 09-40910
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ROGELIO GARZA,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-959-1
Before WIENER, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Rogelio Garza appeals the district court’s judgment revoking his
supervised release and sentencing him to serve twenty-four months in prison.
According to Garza, the district court erred by concluding that he had committed
a new offense and by using this finding both to cancel his release and as a basis
for his sentence. Under Garza’s view, the evidence adduced at the revocation
hearing did not establish his commission of a new, marijuana-related offense.
The abuse of discretion standard applies to our review of the district court’s
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40910 Document: 00511177911 Page: 2 Date Filed: 07/19/2010
No. 09-40910
decision to rescind Garza’s release. See United States v. McCormick, 54 F.3d
214, 219 (5th Cir. 1995).
We disagree with Garza’s arguments. Our review of the record shows no
error in connection with the district court’s conclusion that Garza committed the
new offense alleged in the Petition For Warrant or Summons because the
evidence adduced at the revocation hearing sufficed to show that it was more
likely than not that Garza committed the disputed offense. See 18 U.S.C.
§ 3583(e)(3); see also United States v. Hinson, 429 F.3d 114, 117-18 (5th Cir.
2005); United States v. Barksdale-Contreras, 972 F.2d 111, 115 (5th Cir. 1992).
Because the district court’s conclusion concerning Garza’s commission of the new
offense was not erroneous, its use of this conclusion to revoke his release and
sentence him likewise was not erroneous.
The judgment of the district court is AFFIRMED.
2