                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 November 8, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                           No. 03-50400
                         Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JOSE LUIS GARZA, JR., also known as Jose Luis Garza,

                                     Defendant-Appellant.

                       --------------------
          Appeals from the United States District Court
                for the Western District of Texas
                      USDC No. W-00-CR-94-2
                       --------------------

Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.

PER CURIAM:*

     Jose Luis Garza, Jr., also known as Jose Luis Garza, appeals

his jury conviction and sentence for possession with intent to

distribute five kilograms or more of cocaine.   Garza seeks a

remand to the district court to enable it to review his motion

for new trial based on newly discovered evidence.   The Government

agrees that remand is appropriate in this case.

     The district court erred when it denied Garza’s timely


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this opinion should not be published and is not precedent except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

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motion for new trial for lack of jurisdiction because of the

pending appeal.1   Accordingly, this case is remanded to the

district court for the limited purpose of considering Garza’s

motion for new trial based on newly discovered evidence.2      On

remand, the district court should consider Garza’s motion for new

trial “upon an amplified record and thereupon make appropriate

findings of fact and conclusions of law as to whether the

conviction of [Garza] should be permitted to stand.”3   The

district court may deny the motion or, “if the district court

thinks that the motion should be granted, it should certify that

determination to the appellate court in order that the appellate

court may entertain a motion to remand.”4

     Garza also requests that he be appointed counsel to assist

him in obtaining the necessary depositions and affidavits from

material witnesses and to represent him at the hearing on his

motion for new trial.   Accordingly, the district court is

directed to appoint counsel to represent Garza if it determines

that Garza qualifies for appointed counsel pursuant to 18 U.S.C.



     1
      See United States v. Redd, 355 F.3d 866, 880-81 (5th Cir.
2003).
     2
      See id. at 881 n.15; see also United States v. Devoe, 489
F.2d 158, 160-61 (5th Cir. 1974).
     3
      DeVoe, 489 F.2d at 160-61.
     4
      United States v. Fuentes-Lozano, 580 F.2d 724, 726 (5th Cir.
1978).

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§ 3006A or if the interests of justice so require.5

     This court retains jurisdiction over the appeal except for

the purposes of the limited remand stated above.

     LIMITED REMAND.




     5
      See 18 U.S.C. § 3006A; United States v. Whitebird, 55 F.3d
1007, 1010-11 (5th Cir. 1995).

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