United States v. Galvan ( 2006 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                  June 13, 2006
    Charles R. Fulbruge III
    Clerk
    No. 05-41332
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    GUILLERMO GALVAN,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 2:04-CR-82-ALL
    --------------------
    Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Guillermo Galvan appeals from his resentencing following our
    earlier remand of his case.   See United States v. Galvan, 133 F.
    App’x 154 (5th Cir.), cert. denied, 
    126 S. Ct. 496
    (2005).        In
    our earlier opinion, we found that the district court plainly
    erred when it imposed Galvan’s sentence under a mandatory
    guidelines scheme and that this error affected Galvan’s
    substantial rights as it appeared the district court would have
    imposed a lighter sentence under an advisory guidelines scheme.
    *
    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    that this opinion should not be published and is not precedent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.
    No. 05-41332
    -2-
    Galvan, 133 F. App’x at 156.    We remanded the case for
    resentencing.
    On appeal following remand, Galvan does not challenge his
    newly-imposed sentence, but rather raises the same issues already
    decided by this court in his first appeal.    Galvan correctly
    concedes that none of the exceptions to the law-of-the-case
    doctrine are present in this appeal and that the law-of-the-case
    doctrine prohibits this court from considering the issues raised
    by Galvan in this appeal.    See United States v. Becerra, 
    155 F.3d 740
    , 752-53 (5th Cir. 1998); Burroughs v. FFP Operating Partners,
    
    70 F.3d 31
    , 33 (5th Cir. 1995).
    Galvan nonetheless asserts that he raises these issues to
    preserve them for review by the Supreme Court.    However, the
    Supreme Court denied Galvan’s petition for certiorari in his
    original appeal.   See Galvan v. United States, 
    126 S. Ct. 496
    (2005).   The appeal is devoid of merit and is dismissed as
    frivolous.
    The Federal Public Defender’s motion to withdraw is denied
    because it fails to establish “that there is a conflict of
    interest or other most pressing circumstances or that the
    interests of justice otherwise require relief of counsel.”    Fifth
    Circuit Plan Under the CJA, § 5(B); see United States v. Trevino,
    
    992 F.2d 64
    , 65 (5th Cir. 1993).    The Federal Public Defender’s
    motion to seal is granted.
    APPEAL DISMISSED AS FRIVOLOUS; MOTION TO WITHDRAW DENIED;
    MOTION TO SEAL GRANTED.