     Case: 09-50806     Document: 00511176405          Page: 1    Date Filed: 07/16/2010




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

                                                 FILED
                                                                            July 16, 2010
                                     No. 09-50806
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

PAUL GARZA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                               USDC No. 5:04-109-1


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Paul Garza appeals the sentence imposed upon revocation of his
supervised release.       Garza was incorrectly advised during his underlying
criminal proceedings that he faced a maximum of three years (instead of five
years) of supervised release in connection with his offense of possession of a
firearm during the commission of a drug trafficking offense.                     Garza was
convicted of that offense and sentenced to five years in prison and five years of
supervised release. Following the revocation of his supervised release, Garza

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50806    Document: 00511176405 Page: 2        Date Filed: 07/16/2010
                                 No. 09-50806

was sentenced to 24 months of imprisonment and 36 months of supervised
release.
      Garza states that his initial guilty plea was involuntary because he was
incorrectly advised of the term of supervised release he could receive. He argues
that revocation counsel was ineffective for not noticing that the plea agreement
stated that Garza could receive a maximum term of three years of supervised
release and for not “possibly ask[ing] for specific performance” of his plea
agreement. He argues that, based upon the terms of his plea agreement, this
court should vacate his sentence so that he can be resentenced to 24 months in
prison and 12 months of supervised release.
      It is well-established that a defendant may not use the appeal of a
revocation of supervised release to challenge an underlying conviction or original
sentence.   United States v. Hinson, 429 F.3d 114, 116 (5th Cir. 2005)
Accordingly, we do not consider any challenge by Garza to his underlying
conviction. In addition, because the record is insufficiently developed to allow
consideration at this time of Garza’s claim of ineffective assistance of revocation
counsel, we do not consider his claim of ineffective assistance of counsel. United
States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006).
      Because Garza did not challenge his revocation sentence in the district
court, our review of his challenge to that sentence is for plain error. To show
plain error, the appellant must show a forfeited error that is clear or obvious and
that affects his substantial rights. Puckett v. United States, 129 S. Ct. 1423,
1429 (2009).    If the appellant makes such a showing, this court has the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      The district court’s imposition of the reimposed supervised release term
was proper under 18 U.S.C. § 3583(h).           Moreover, Garza has failed to
demonstrate that, in his case, any conflict between his revocation sentence and



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  Case: 09-50806   Document: 00511176405 Page: 3      Date Filed: 07/16/2010
                               No. 09-50806

the sentencing/plea agreement admonishments he received in 2005 rises to the
level of plain error. Accordingly, the district court’s judgment is AFFIRMED.




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