United States v. Garcia

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 22, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40273
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROLANDO ROSA GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:03-CR-205-2
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Rolando Rosa Garcia appeals his conviction and sentence
following a jury trial for conspiring to possess with intent to
distribute 96 kilograms of marijuana and possession of the same.
This court will not address Garcia’s argument, raised for the
first time on appeal, that he was denied effective assistance of
counsel because counsel failed to file timely objections to the
Presentence Report. See United States v. Miller, 406 F.3d 323,
335-36 (5th Cir. 2005). Further, Garcia fails to meet his burden
of showing that the district court’s sentence, which was

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No. 04-40273
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determined by applying enhancements under the Guidelines, was
plain error under United States v. Booker, 125 S. Ct. 738 (2005).
Miller, 406 F.3d at 336-37; United States v. Mares, 402 F.3d 511,
520 (5th Cir. 2005), petition for cert. filed (Mar. 31, 2005)
(No. 04-9517).
Without prejudice to Garcia’s right to claim ineffective
assistance of counsel in a 28 U.S.C. § 2255 motion, the judgment
of the district court is AFFIRMED.

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