     Case: 13-41214      Document: 00512832155         Page: 1    Date Filed: 11/10/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-41214
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        November 10, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JOSEFINA GALAVIZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:10-CR-1420-4


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Josefina Galaviz was convicted of conspiring to launder monetary
instruments (count 10) and engaging in monetary transactions in property
derived from drug trafficking (counts 13 and 14) and received a 135-month
sentence. This court remanded the case for resentencing on the sole basis that
count 10 carried a 120-month statutory maximum. United States v. Alaniz,
726 F.3d 586, 619, 628 (5th Cir. 2013). On remand, the district court ordered


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 13-41214

count 10’s maximum term to run partially concurrently with, and partially
consecutively to, the 120-month terms previously imposed on each of counts 13
and 14, for an aggregate 135-month term.
            Galaviz appeals the sentence imposed on remand, contending that
the district court misapplied U.S.S.G. § 5G1.2(d) by imposing a partially
consecutive sentence to achieve a total sentence of 135 months. We review this
claim for plain error because she failed to raise it below. See Puckett v. United
States, 556 U.S. 129, 135 (2009). The district court determined on remand that
a total sentence of 135 months was still warranted because the facts of the case
had remained unchanged. To achieve a total punishment of 135 months, the
district court imposed the 120-month statutory maximum on count 10 and
effectively ordered that 15 months of that term run consecutively to the 120-
month sentences for each of counts 13 and 14. This 135-month total sentence
was sanctioned by § 5G1.2(d). See United States v. Heard, 709 F.3d 413, 426
(5th Cir.), cert. denied, 134 S. Ct. 470 (2013); United States v. Williams, 602
F.3d 313, 319 (5th Cir. 2010). Galaviz’s additional argument that the district
court was constrained by count 10’s statutory maximum sentence in selecting
the total punishment is based on an erroneous reading of United States v.
Garcia, 322 F.3d 842 (5th Cir. 2003). We recently affirmed the sentences of two
of Galaviz’s codefendants who raised similar arguments. United States v.
Lopez, No. 13-41200, 2014 U.S. App. LEXIS 18772 *3-4 (5th Cir. Oct. 1, 2014);
United States v. Magana, No. 13-41197, 2014 U.S. App. LEXIS 18649 *3-4 (5th
Cir. Sept. 30, 2014). Galaviz has shown no error, plain or otherwise.
      Lastly, Galaviz contends that the district court acted vindictively by
resentencing her to a total sentence of 135 months. We review this claim also
for plain error only. See United States v. Scott, 48 F.3d 1389, 1398 (5th Cir.
1995). Because Galaviz received a 135-month aggregate term both at her



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                                No. 13-41214

original sentencing and on remand, the presumption of vindictiveness does not
apply. See United States v. Campbell, 106 F.3d 64, 68 (5th Cir. 1997); see also
Lopez, 2014 U.S. App. LEXIS 18772 at *4; Magana, 2014 U.S. App. LEXIS
18649 at *4. Consequently, she has shown no plain error in this regard as well.
      AFFIRMED.




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