Summary Calendar United States of America v. Robert Garza, Jr

1Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.
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United States Court of Appeals
Fifth Circuit
F I L E D
April 15, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________
No. 02-20362
SUMMARY CALENDAR
_________________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ROBERT GARZA, JR
Defendant - Appellant
______________________________________________________________________________
On Appeal from the United States District Court for the
Southern District of Texas, Houston Division
(6:01-CR-33-2)
______________________________________________________________________________
Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Robert Garza, Jr. appeals his sentence following his guilty-plea conviction for possession
with intent to distribute cocaine. He argues that the district court clearly erred when it refused to
credit him with acceptance of responsibility. He states that the court’s determination that he did
not accept responsibility because he denied knowing that the cocaine he delivered was going to be
converted into crack cocaine conflicts with the court’s decision to not sentence him based upon

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crack cocaine.
The record indicates that Garza waived his right to appeal his sentence except to challenge
an upward departure from the Sentencing Guidelines, a sentence above the statutory maximum, or
the type of drug upon which his sentence was calculated. See United States v. Baymon, 312 F.3d
725, 729 (5th Cir. 2002). Even if Garza did not waive his appellate acceptance-of-responsibility
argument, there was a sufficient foundation in the record supporting the district court’s finding
that Garza frivolously denied knowing that the cocaine he delivered would be converted into
crack cocaine. See United States v. Brace, 145 F.3d 247, 264 (5th Cir. 1998); United States v.
Patino-Cardenas, 85 F.3d 1133, 1135 (5th Cir. 1995); see also USSG § 3E1.1, comment.
(n.1(a)).
AFFIRMED.

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