USA v. Francisco Ruiz Lopez, No. 11-20713 (5th Cir. 2012)
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The court issued a subsequent related opinion or order on December 21, 2012.
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Case: 11-20713 Document: 00511872858 Page: 1 Date Filed: 05/31/2012 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 11-20713 Summary Calendar May 31, 2012 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. FRANCISCO JAVIER RUIZ LOPEZ, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 4:10-CR-369-1 Before REAVLEY, SMITH, and PRADO, Circuit Judges. PER CURIAM:* The counsel appointed to represent Francisco Javier Ruiz Lopez on appeal has filed a motion to withdraw and a brief that relies on Anders v. California, 386 U.S. 738 (1967). Ruiz Lopez has not filed a response. Ruiz Lopez pleaded guilty to the count of an indictment that charged him with conspiring to possess with intent to distribute 5 kilograms or more of a mixture and substance containing a detectable amount of cocaine and 100 kilograms or more of marijuana. The plea was entered pursuant to a written * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20713 Document: 00511872858 Page: 2 Date Filed: 05/31/2012 No. 11-20713 agreement that obligated Ruiz Lopez to plead guilty to the cocaine element in count 1 but made no mention of the marijuana element in that count. In the plea agreement, Ruiz Lopez waived the right to appeal the sentence imposed or the manner in which it was determined; he did not waive the right to appeal his conviction. The district court sentenced Ruiz Lopez to 136 months of imprisonment. The judgment states that Ruiz Lopez was found guilty of committing both the cocaine and the marijuana elements of the offense charged in count 1. Ruiz Lopez did not plead voluntarily with an understanding of the nature of the [marijuana] charge. McCarthy v. United States, 394 U.S. 459, 467 (1969)(internal quotation marks and citation omitted). Indeed, the parties did not believe that the marijuana charge was even part of the plea. By its terms, the agreement included only the cocaine charge, as was made clear by the Government in its objections to the presentence report Although the district court overruled those objection as untimely and alternatively because it found that Ruiz Lopez s involvement with marijuana constituted relevant conduct, the relevant conduct finding pertained to sentencing only and was based merely on a preponderance of the evidence and not on an admission of guilt by Ruiz Lopez or on other proof beyond reasonable doubt concerning the marijuana element of count 1. Ruiz Lopez did not, of course, have an opportunity to object to the written judgment. See United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006). We may remand for entry of appropriate judgment by the district court. 28 U.S.C. ยง 2106; see also FED. R. CRIM. P. 36. We have previously noted sua sponte that we must remand for the purpose of correcting irregularities contained in the judgment. United States v. Johnson, 588 F.2d 961, 964 (5th Cir. 1979). Therefore, we REMAND this case for the limited purpose of correcting the judgment to delete any reference to marijuana and to show that Ruiz Lopez was convicted only of conspiracy to possess with intent to distribute five 2 Case: 11-20713 Document: 00511872858 Page: 3 Date Filed: 05/31/2012 No. 11-20713 kilograms or more of a mixture and substance containing a detectable amount of cocaine. We retain jurisdiction of the case for all other purposes and DIRECT that the case be returned to this court upon compliance with the remand order. Counsel s motion to withdraw is CARRIED WITH THE CASE. 3
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