Case: 11-20713     Document: 00511872858         Page: 1     Date Filed: 05/31/2012




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

                                                                            FILED
                                                                           May 31, 2012
                                     No. 11-20713
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FRANCISCO JAVIER RUIZ LOPEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-369-1


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        The counsel appointed to represent Francisco Javier Ruiz Lopez on appeal
has filed a motion to withdraw and a brief that relies on Anders v. California,

 (1967). Ruiz Lopez has not filed a response.
        Ruiz Lopez pleaded guilty to the count of an indictment that charged him
with conspiring to possess with intent to distribute 5 kilograms or more of a
mixture and substance containing a detectable amount of cocaine and 100
kilograms or more of marijuana. The plea was entered pursuant to a written

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20713   Document: 00511872858     Page: 2   Date Filed: 05/31/2012

                                 No. 11-20713

agreement that obligated Ruiz Lopez to plead guilty to the cocaine element in
count 1 but made no mention of the marijuana element in that count. In the
plea agreement, Ruiz Lopez waived the right to appeal the sentence imposed or
the manner in which it was determined; he did not waive the right to appeal his
conviction.   The district court sentenced Ruiz Lopez to 136 months of
imprisonment.    The judgment states that Ruiz Lopez was found guilty of
committing both the cocaine and the marijuana elements of the offense charged
in count 1.
      Ruiz Lopez did not plead “voluntarily with an understanding of the nature
of the [marijuana] charge.” McCarthy v. United States, 

, 467
(1969)(internal quotation marks and citation omitted). Indeed, the parties did
not believe that the marijuana charge was even part of the plea. By its terms,
the agreement included only the cocaine charge, as was made clear by the
Government in its objections to the presentence report Although the district
court overruled those objection as untimely and alternatively because it found
that Ruiz Lopez’s involvement with marijuana constituted relevant conduct, the
relevant conduct finding pertained to sentencing only and was based merely on
a preponderance of the evidence and not on an admission of guilt by Ruiz Lopez
or on other proof beyond reasonable doubt concerning the marijuana element of
count 1. Ruiz Lopez did not, of course, have an opportunity to object to the
written judgment. See United States v. Bigelow, 

, 381 (5th Cir.
2006).
      We may remand for entry of appropriate judgment by the district court.
28 U.S.C. § 2106; see also FED. R. CRIM. P. 36. We have previously noted sua
sponte that we must remand for the purpose of correcting irregularities
contained in the judgment. United States v. Johnson, 

, 964 (5th Cir.
1979). Therefore, we REMAND this case for the limited purpose of correcting
the judgment to delete any reference to marijuana and to show that Ruiz Lopez
was convicted only of conspiracy to possess with intent to distribute five

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  Case: 11-20713    Document: 00511872858     Page: 3   Date Filed: 05/31/2012

                                 No. 11-20713

kilograms or more of a mixture and substance containing a detectable amount
of cocaine. We retain jurisdiction of the case for all other purposes and DIRECT
that the case be returned to this court upon compliance with the remand order.
Counsel’s motion to withdraw is CARRIED WITH THE CASE.




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