     Case: 16-50708      Document: 00513947571         Page: 1    Date Filed: 04/11/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 16-50708
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                          April 11, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

MARCUS A. GARZA,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 5:12-CR-323-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Marcus A. Garza pleaded guilty to one count of bank fraud and one count
of failure to file income tax returns. The district court imposed a total sentence
of 30 months and restitution of $681,943.27. On direct appeal, we vacated the
restitution order and remanded the case for assessment of restitution. On
remand, the district court denied motions by Garza seeking to withdraw his




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-50708     Document: 00513947571    Page: 2   Date Filed: 04/11/2017


                                 No. 16-50708

guilty plea and to expand resentencing beyond the issue of restitution. The
district court amended the judgment of conviction to reflect $0 in restitution.
      Garza argues that the district court erred by refusing to address the
validity of his plea or the calculation of his sentence on remand. Garza did not
challenge either the validity of his conviction or the calculation of his prison
sentence on direct appeal. As neither issue had been challenged before this
court, neither was subject to examination by the district court on remand or by
this court in this subsequent appeal. See United States v. Teel, 691 F.3d 578,
583 (5th Cir. 2012).
      In this second appeal, Garza first argues that the district court was
without jurisdiction to convict him because the Government failed to allege and
prove an element of the offense. Defects in an indictment, such as insufficient
factual allegations, do not deprive the district court of subject matter
jurisdiction. United States v. Cotton, 535 U.S. 625, 630-31 (2002); United
States v. Scruggs, 714 F.3d 258, 263 (5th Cir. 2013).
      AFFIRMED.




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