                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 25, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-41454
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

NOE NICOLAS GARZA,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. 2:03-CR-70-1
                        --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Noe Nicolas Garza appeals the district court’s sentence

imposed following his guilty-plea conviction for conspiracy to

possess with intent to distribute cocaine.   Finding no error, we

affirm.

     Garza first argues that his sentence, which was enhanced

based on facts determined by the judge, violates the Sixth

Amendment rule announced in United States v. Booker, 543 U.S. 220

(2005).   Garza did not raise this objection in the district


     *
       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this opinion should not be published and is not precedent except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. 03-41454
                                -2-

court.   Accordingly, we review for plain error.    See United

States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).     Garza cannot

show that the error in this case affected his substantial rights

because there is nothing in the record to indicate that the

district court, operating under advisory Sentencing Guidelines,

would have imposed a lower sentence.   See id.

     Garza next contends that he should have received a three-

level reduction for acceptance of responsibility and that the

denial of the reduction constitutes a breach of the plea

agreement and rendered his plea involuntary.     Garza’s contentions

are wholly without merit, if not frivolous.

     This court reviews a district court’s finding on acceptance

of responsibility with even greater deference than is given under

the clearly erroneous standard.   See United States v.

Angeles-Mendoza, 407 F.3d 742, 753 (5th Cir. 2005).     The district

court denied the reduction after finding that Garza engaged in

obstruction of justice by attempting to influence the testimony

of other inmates so that he could obtain a U.S.S.G. § 5K1.1

reduction.   Garza does not challenge this finding, which is, in

any event, amply supported by the evidence.    Conduct which

results in an enhancement under U.S.S.G. § 3C1.1 for obstruction

of justice “ordinarily indicates that the defendant has not

accepted responsibility for his criminal conduct” except in

“extraordinary cases.”   § 3E1.1, comment. (n.4).   The court

concluded that this was not an extraordinary case and Garza cites
                           No. 03-41454
                                -3-

no evidence or law to the contrary.   He has failed to demonstrate

any error by the district court.

     Garza’s contentions that the plea agreement was breached and

that his plea was involuntary are likewise wholly without merit.

As for his claim of breach, the terms of the plea agreement made

it clear that the recommendation of a three-level reduction was

conditioned upon Garza’s truthful rendition of facts at

rearraignment, sentencing and during the presentence interview.

Further, Garza he was required to refrain from committing any

crimes.   Garza’s lack of truthfulness at sentencing and his

conduct in attempting to obstruct justice negated any obligation

of the Government to move for a reduction.

     With respect to the voluntariness of the plea, Garza’s

assertion that he reasonably believed that he would receive a

reduction for acceptance of responsibility is contrary to his

sworn testimony at rearraignment that he understood that the

district court was not bound by the plea agreement and that the

court would determine his sentence without regard the terms of

the plea agreement.   His claim that his plea was not voluntary is

without merit.

     Finally, Garza seeks leave to have his counsel relieved and

to proceed pro se on appeal.   Garza’s motion, filed nine months

after his counsel filed a brief on Garza’s behalf, is not timely.

See United States v. Wagner, 158 F.3d 901, 902 (5th Cir. 1998).
                           No. 03-41454
                                -4-

     For the foregoing reasons, the judgment of the district

court is affirmed.   Garza’s motion to proceed pro se is denied.

     AFFIRMED; MOTION TO PROCEED PRO SE DENIED.
