     Case: 13-10070      Document: 00512510734         Page: 1    Date Filed: 01/23/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                               United States Court of Appeals
                                                                                        Fifth Circuit

                                                                                      FILED
                                    No. 13-10070                               January 23, 2014
                                  Summary Calendar
                                                                                 Lyle W. Cayce
                                                                                      Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GENE IRVING GARLAND, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:00-CR-197-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Gene Irving Garland, Jr., was convicted of one
count of securities fraud in violation of 15 U.S.C. §§ 77q(a) and 77x (Count 1);
62 counts of mail fraud in violation of 18 U.S.C. § 1341 (Counts 2-63); 34 counts
of money laundering, larceny, and theft and aiding and abetting in violation of
18 U.S.C. §§ 2 and 1956(a)(l)(A)(i) (Counts 64-97); 18 counts of money
laundering in violation of §§ 2(b) and 1956(a)(l)(A)(i) (Counts 98-115); and five


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10070    Document: 00512510734     Page: 2   Date Filed: 01/23/2014


                                 No. 13-10070

counts of money laundering in violation of 18 U.S.C. § 1957. Garland filed a
28 U.S.C. § 2241 petition, and was successful in having his convictions on
Counts 64 through 115 vacated.
      Garland was resentenced and now appeals the sentence of 252 months
of imprisonment imposed for the amended judgment of conviction. He asserts
that the sentence is procedurally and substantively unreasonable.
      Garland did not present rebuttal evidence to demonstrate that the
supplemental presentence report was “materially untrue, inaccurate or
unreliable.” United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998). We
therefore review Garland’s challenges to the facts underlying the application
of the Sentencing Guidelines enhancements for plain error. See Puckett v.
United States, 556 U.S. 129, 134-35 (2009). We have “held that questions of
fact capable of resolution by the district court upon proper objection at
sentencing can never constitute plain error.” United States v. Conn, 657 F.3d
280, 284 (5th Cir. 2011) (internal quotation marks and citation omitted).
Garland has not demonstrated any plain procedural error.
      We review the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard, taking into account the totality of the
circumstances. See Gall, 552 U.S. at 51. A within-guidelines sentence is
presumptively reasonable. United States v. Newson, 515 F.3d 374, 379 (5th
Cir. 2008).   To rebut the presumption, Garland had to establish that the
district court failed to account for a significant sentencing factor, gave
significant weight to an “irrelevant or improper factor,” or made “a clear error
of judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009). Viewed in light of the totality of circumstances,
Garland has not shown that the district court abused its discretion by imposing
the within-guidelines sentence, see Gall, 552 U.S. at 51, and he has not



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                                No. 13-10070

rebutted the presumption that his sentence is reasonable, see Cooks, 589 F.3d
at 186.
      To the extent that Garland contends that his counsel was ineffective for
failing to challenge the enhancements to the PSR, the record is insufficiently
developed to allow consideration of such an argument on this direct appeal.
Such claims generally are not resolved on direct appeal when they have not
been developed in the district court. See United States v. Cantwell, 470 F.3d
1087, 1091 (5th Cir. 2006). The Supreme Court has emphasized that a 28
U.S.C. § 2255 motion is the preferred method for raising a claim of ineffective
assistance of counsel. See Massaro v. United States, 538 U.S. 500, 503-04
(2003).
      AFFIRMED.




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