     Case: 12-40459       Document: 00512152738         Page: 1     Date Filed: 02/22/2013




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

                                                                            FILED
                                                                         February 22, 2013
                                     No. 12-40459
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

EDUARDO GARZA, also known as Eddie Garza,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:05-CR-88-1


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Eduardo Garza appeals the sentence imposed following the revocation of
his previously imposed term of supervised release. He argues that he was
subject to a maximum revocation sentence of only 36 months, but the district
court sentenced him to 48 months of imprisonment. Because Garza argues that
his revocation sentence exceeds the statutory maximum and is illegal, our review
is de novo. See United States v. Vera, 542 F.3d 457, 459 (5th Cir. 2008).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40459     Document: 00512152738      Page: 2    Date Filed: 02/22/2013

                                  No. 12-40459

      The statutory maximum revocation sentence is based on the classification
of the underlying offense that resulted in the imposition of the term of
supervised release. See 18 U.S.C. § 3583(e)(3). Unless the underlying offense
of conviction specifies a particular classification, this classification is based on
the “maximum term of imprisonment authorized” for that underlying offense.
18 U.S.C. § 3559(a). In the instant case, Garza was convicted for a drug
conspiracy under 21 U.S.C. §§ 846 and 841(b)(1)(B), which ordinarily would
carry a statutory maximum sentence of 40 years of imprisonment. However,
because the Government provided notice of his earlier felony drug conviction as
required by 21 U.S.C. § 851, his “maximum term of imprisonment authorized”
under § 841(b)(1)(B) increased to life. Therefore, Garza’s underlying offense
qualified as a Class A felony, and his applicable statutory maximum revocation
sentence was five years. See § 3559(a)(1); § 3583(e)(3). Thus, his 48-month
revocation sentence is not illegal because it does not exceed the applicable five
year statutory maximum.
      AFFIRMED.




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