USA v. Gallardo, No. 06-51526 (5th Cir. 2007)

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 06-51526 Summary Calendar November 30, 2007 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. GARRY DAVID GALLARDO Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 5:87-CR-98-1 Before REAVLEY, JOLLY, and DENNIS, Circuit Judges. PER CURIAM:* Garry David Gallardo, federal prisoner # 41571-080, appeals the revocation of the probation imposed following his 1987 guilty-plea conviction for four counts of mailing child pornography in violation of 18 U.S.C. § 2252(a)(1). He argues that the district court erred in denying his motions to quash the revocation because he raises a jurisdictional challenge to the underlying indictment which may be raised at any time. This court reviews whether a * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 06-51526 district court lacked jurisdiction to revoke probation de novo. See United States v. Jimenez-Martinez, 179 F.3d 980, 981 (5th Cir. 1999) (supervised release). Gallardo may not use an appeal of the revocation of his probation to attack his original sentence directly or collaterally in this proceeding. See United States v. Hinson, 429 F.3d 114, 116 (5th Cir. 2005); United States v. Moody, 277 F.3d 719, 720-21 (5th Cir. 2001). Gallardo s argument that his situation falls within a jurisdictional exception to this rule is without merit. A defective indictment is not a jurisdictional defect. United States v. Cotton, 535 U.S. 625, 630-31 (2002). Further, Gallardo waived all non-jurisdictional defects by pleading guilty. See United States v. Smallwood, 920 F.2d 1231, 1240 (5th Cir. 1991). AFFIRMED. 2

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