                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          June 30, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-41580
                         Summary Calendar



                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                               versus

                         SEBASTIAN GARCIA,

                                                 Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. C-03-CR-209-1
                      --------------------

Before SMITH, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM:*

     Sebastian Garcia appeals the sentence he received following

entry of his guilty plea to a charge of possession with intent to

distribute more than fifty kilograms of marijuana.      The district

court upwardly departed from the applicable Sentencing Guideline

range and sentenced Garcia to 240 months of imprisonment and six

years of supervised release.


     *
        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that this opinion should not be published and is not precedent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.

                                 1
       Garcia argues that the upward departure was an abuse of

discretion.      He contends that the district court “removed itself

from the position of impartial fact-finder,” assumed the role of an

advocate, demonstrated a lack of impartiality, and encouraged the

Assistant United States Attorney to “back away from her earlier

[sentencing] recommendation of 151 months.”                 He does not challenge

as    unacceptable    the    district         court’s    stated    reasons      for   the

departure, nor does he challenge the extent of the upward departure

as unreasonable.

       Because Garcia did not object in the district court to the

upward departure, our review is limited to plain error. See United

States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997). Garcia must

show an error that is plain and that affected his substantial

rights.      Ravitch, 128 F.3d at 869.             If Garcia makes this showing,

we may exercise discretion and correct the forfeited error if the

error    “seriously    affects          the   fairness,    integrity,      or    public

reputation of judicial proceedings.”                 Id. (citations omitted).

       The district court should “never evince or appear to evince

partiality to one side over the other.”                   United States v. Davis,

285 F.3d 378, 381 (5th Cir. 2002).                A review of the record reflects

that the presentence report alerted the district court that an

upward departure was warranted.                The district court relied on the

grounds      identified     in    the    presentence      report    to    justify     the

departure, which Garcia verified were correct.                    The district court

did    not    encourage     the    Government       to   abandon    its    sentencing

                                              2
recommendation;                the   Government        changed   its    position      when   it

realized that Garcia’s plea agreement did not obligate it with

respect to the sentence.                    Garcia has not shown error, much less

plain error, concerning the upward departure to 240 months of

imprisonment.                 See Ravitch, 128 F.3d at 869.

          “[A]       defendant       with    no   prior    felony      drug   conviction     is

‘required to receive a supervised release term of not less than nor

more than three years.’”                    United States v. McWaine, 290 F.3d 269,

277        (5th         Cir.     2002)      (citation      omitted);      see    21    U.S.C.

§ 841(b)(1)(C).                Although Garcia did not raise this issue, we have

the discretion to sua sponte modify the term of supervised release.

McWaine, 290 F.3d at 277. Accordingly, Garcia’s term of supervised

release is MODIFIED to three years.

          The conviction and sentence are AFFIRMED AS MODIFIED.




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