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-        Information notice          State Trade Expansion Program (STEP) Funding Opportunity Announcement and FAQ
IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50489

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FLORENTINO TOVAR-RIVAS; ROBERTO GARCIA-VALLES,

Defendants-Appellants

Appeal from the United States District Court

for the Western District of Texas 

USDC No. 1:08-CR-448-6

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges. 

PER CURIAM:*

Following a jury trial, Florentino Tovar-Rivas (Tovar) and Roberto GarciaValles (Garcia) were convicted of conspiracy to possess with the intent to

distribute cocaine and of possession with the intent to distribute cocaine. 

Tovar’s counsel, the Federal Public Defender (FPD), raises a single issue on

appeal. Counsel argues that 21 U.S.C. § 841(b)(1)(A), the statute under which

Tovar was convicted, is unconstitutional in light of Apprendi v. New Jersey,

530 U.S. 466 (2000). The FPD concedes that this argument is foreclosed by this

United States Court of Appeals

Fifth Circuit

F I L E D

October 20, 2011

Lyle W. Cayce

Clerk

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: 09-50489 Document: 00511639669 Page: 1 Date Filed: 10/20/2011
No. 09-50489

court’s precedent in United States v. Slaughter, 238 F.3d 580, 582-84 (5th Cir.

2000), and he raises the issue solely to preserve it for possible further review. 

Because Tovar’s argument is foreclosed, the Government’s motion for summary

affirmance is GRANTED, its alternative motion for an extension of time is

DENIED as unnecessary, and the judgment of the district court is AFFIRMED. 

Garcia’s appointed counsel has moved for leave to withdraw and has filed

a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and United

States v. Flores, 632 F.3d 229 (5th Cir. 2011). Garcia has filed a response. 

Insofar as Garcia argues that his counsel was ineffective, the general rule in this

circuit is that a claim of ?ineffective assistance of counsel cannot be resolved on

direct appeal when the claim has not been raised before the district court since

no opportunity existed to develop the record on the merits of the allegations.” 

United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006). Because the

present record is not sufficiently developed and Garcia has not even identified

an issue for appeal, we will not consider Garcia’s claim on direct appeal. 

Cantwell, 470 F.3d at 1091. 

We have reviewed counsel’s brief, Garcia’s response, and the relevant

portions of the record. We concur with counsel’s assessment that the appeal

presents no nonfrivolous issue for appellate review. Accordingly, counsel’s

motion for leave to withdraw is GRANTED, counsel is excused from further

responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.

2

Case: 09-50489 Document: 00511639669 Page: 2 Date Filed: 10/20/2011
### §1465. Appeals to the Secretary

#### (a) Notice

Not later than 30 days after the date of the filing of an appeal to the Secretary of a consistency determination under section 1456 of this title, the Secretary shall publish an initial notice in the Federal Register.

#### (b) Closure of record

#### (1) In general

Not later than the end of the 160-day period beginning on the date of publication of an initial notice under subsection (a), except as provided in paragraph (3), the Secretary shall immediately close the decision record and receive no more filings on the appeal.

#### (2) Notice

After closing the administrative record, the Secretary shall immediately publish a notice in the Federal Register that the administrative record has been closed.

#### (3) Exception

#### (A) In general

Subject to subparagraph (B), during the 160-day period described in paragraph (1), the Secretary may stay the closing of the decision record—

(i) for a specific period mutually agreed to in writing by the appellant and the State agency; or

(ii) as the Secretary determines necessary to receive, on an expedited basis—

(I) any supplemental information specifically requested by the Secretary to complete a consistency review under this chapter; or

(II) any clarifying information submitted by a party to the proceeding related to information in the consolidated record compiled by the lead Federal permitting agency.

#### (B) Applicability

The Secretary may only stay the 160-day period described in paragraph (1) for a period not to exceed 60 days.

#### (c) Deadline for decision

#### (1) In general

Not later than 60 days after the date of publication of a Federal Register notice stating when the decision record for an appeal has been closed, the Secretary shall issue a decision or publish a notice in the Federal Register explaining why a decision cannot be issued at that time.

#### (2) Subsequent decision

Not later than 15 days after the date of publication of a Federal Register notice explaining why a decision cannot be issued within the 60-day period, the Secretary shall issue a decision.

(Pub. L. 89–454, title III, §319, as added Pub. L. 104–150, §8, June 3, 1996, 110 Stat. 1382; amended Pub. L. 109–58, title III, §381, Aug. 8, 2005, 119 Stat. 737.)

#### **Editorial Notes**

#### References in Text

This chapter, referred to in subsec. (b)(3)(A)(ii)(I), was in the original "this Act" which was translated as reading "this title", meaning title III of Pub. L. 89–454 which is classified generally to this chapter, to reflect the probable intent of Congress.

#### Amendments

2005—Pub. L. 109–58 amended section catchline and text generally, substituting provisions relating to notice, closure of record, and deadline for decision for provisions relating to notice, deadline for decision, and application of section.
#### § 5.31 Transition provision.

This part shall apply to license applications for which the deadline for filing a notification of intent to seek a new or subsequent license, or for filing a notification of intent to file an original license application, as required by § 5.5 of this part, is July 23, 2005 or later.
### **CHAPTER 73—RHINOCEROS AND TIGER CONSERVATION**

Sec.
5301.
Findings.
5302.
Purposes.
5303.
Definitions.
5304.
Rhinoceros and tiger conservation assistance.
5305.
Acceptance and use of donations.
5305a.
Prohibition on sale, importation, or exportation of products labeled or advertised as rhinoceros or tiger products.
5305b.
Educational outreach program.
5305c.
Advisory group.
5306.
Authorization of appropriations.
§ 100.11 Allowable costs. ( a ) Costs that are eligible for reimbursement under section 109(e) CALEA are: ( 1 ) All reasonable plant costs directly associated with the modifications performed by carriers in connection with equipment, facilities, and services installed or deployed on or before January 1, 1995, to establish the capabilities necessary to comply with section 103 of CALEA, until the equipment, facility, or service is replaced or significantly upgraded or otherwise undergoes major modifications;
( 2 ) Additional reasonable plant costs directly associated with making the assistance capability requirements found in section 103 of CALEA reasonably achievable with respect to equipment, facilities, or services installed or deployed after January 1, 1995, in accordance with the procedures established in CALEA section 109(b); and
( 3 ) Reasonable plant costs directly associated with modifications to any of a carrier's systems or services, as identified in the Carrier Statement required by CALEA section 104(d), that do not have the capacity to accommodate simultaneously the number of interceptions, pen registers, and trap and trace devices set forth in the Capacity Notice(s) published in accordance with CALEA section 104.
( b ) Allowable plant costs shall include: ( 1 ) The costs of installation, inspection, and testing of the telecommunications plant, and inspection after modifications have been made; and
( 2 ) The costs of direct supervision and office support for this work for plant costs.
( c ) In the case of any modification that may be used for any purpose other than lawfully authorized electronic surveillance by a government law enforcement agency, this part permits recovery of only the incremental cost of making the modification suitable for such law enforcement purposes.
( d ) Reasonable costs that are directly associated with the modifications performed by a carrier as described in § 100.11(a) are recoverable. These allowable costs are limited to directly assignable and directly allocable costs incurred by the business units whose efforts are expended on the implementation of CALEA requirements.
#### § 156.1 Who may apply.

Any person or municipality as defined in section 2 of the Natural Gas Act engaged or legally authorized to engage in the local distribution of natural or artificial gas to the public may file with the Commission an application pursuant to the provisions of section 7(a) of the Natural Gas Act for an order of the Commission directing a natural gas company to extend or improve its transportation facilities, to establish physical connection of its transportation facilities with the facilities of, and sell natural gas to such person or municipality, and for such purpose to extend its transportation facilities to communities immediately adjacent to such facilities or to territory served by such natural gas company.
J.

petition. Appellant, however, failed to provide specific facts relating to his alleged deprivation of access to the law library, and thus failed to demonstrate that prison officials interfered with his ability to file a timely petition. Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003); Phelps v. Dir. Nev. Dep't of Prisons, 104 Nev. 656, 660, 764 P.2d 1303, 1306 (1988). Therefore, the district court did not err in denying this claim.

Appellant also claimed that the ineffective assistance of trial and appellate counsel provided cause for the delay in filing his petition. Appellant failed to demonstrate cause for the delay because these claimswere reasonably available to be raised in a timely petition and ineffectiveassistance-of-counsel claims that are themselves procedurally barred cannot establish cause. Hathaway, 119 Nev. at 252-53, 71 P.3d at 506. Therefore, the district court did not err in denying the petition as procedurally barred, and we

ORDER the judgment of the district court AFFIRMED. 2

J.

2 We have reviewed all documents that appellant has submitted in proper person to the clerk of this court in this matter, and we conclude that no relief based upon those submissions is warranted. To the extent that appellant has attempted to present claims or facts in those submissions which were not previously presented in the proceedings below, we have declined to consider them in the first instance.

2cc: Hon. Doug Smith, District Judge Joseph Dan Baker Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

SUPREME COURT

OF NEVADA

(0) 1947A 3
### §80a–49. Construction with other laws

Except where specific provision is made to the contrary, nothing in this subchapter shall affect (1) the jurisdiction of the Commission under the Securities Act of 1933 [15 U.S.C. 77a et seq.], the Securities Exchange Act of 1934 [15 U.S.C. 78a et seq.], the Trust Indenture Act of 1939 [15 U.S.C. 77aaa et seq.], or subchapter II of this chapter, over any person, security, or transaction, or (2) the rights, obligations, duties, or liabilities of any person under such Acts; nor shall anything in this subchapter affect the jurisdiction of any other commission, board, agency, or officer of the United States or of any State or political subdivision of any State, over any person, security, or transaction, insofar as such jurisdiction does not conflict with any provision of this subchapter or of any rule, regulation, or order hereunder.

(Aug. 22, 1940, ch. 686, title I, §50, 54 Stat. 846; Pub. L. 111–203, title IX, §986(c)(4), July 21, 2010, 124 Stat. 1936.)

#### **Editorial Notes**

#### References in Text

The Securities Act of 1933, referred to in text, is act May 27, 1933, ch. 38, title I, 48 Stat. 74, which is classified generally to subchapter I (§77a et seq.) of chapter 2A of this title. For complete classification of this Act to the Code, see section 77a of this title and Tables.

The Securities Exchange Act of 1934, referred to in text, is act June 6, 1934, ch. 404, 48 Stat. 881, which is classified principally to chapter 2B (§78a et seq.) of this title. For complete classification of this Act to the Code, see section 78a of this title and Tables.

The Trust Indenture Act of 1939, referred to in text, is title III of act May 27, 1933, ch. 38, as added Aug. 3, 1939, ch. 411, 53 Stat. 1149, which is classified generally to subchapter III (§77aaa et seq.) of chapter 2A of this title. For complete classification of this Act to the Code, see section 77aaa of this title and Tables.

#### Amendments

2010—Pub. L. 111–203 struck out "the Public Utility Holding Company Act of 1935," after "the Securities Exchange Act of 1934,".

#### **Statutory Notes and Related Subsidiaries**

#### Effective Date of 2010 Amendment

Amendment by Pub. L. 111–203 effective 1 day after July 21, 2010, except as otherwise provided, see section 4 of Pub. L. 111–203, set out as an Effective Date note under section 5301 of Title 12, Banks and Banking.

#### **Executive Documents**

#### Transfer of Functions

For transfer of functions of Securities and Exchange Commission, with certain exceptions, to Chairman of such Commission, see Reorg. Plan No. 10 of 1950, §§1, 2, eff. May 24, 1950, 15 F.R. 3175, 64 Stat. 1265, set out under section 78d of this title.
# C_2010161EN.01001801.xml

| 19.6.2010 | EN | Official Journal of the European Union | C 161/18 |
| --- | --- | --- | --- |

19.6.2010

EN

Official Journal of the European Union

C 161/18

---

Action brought on 15 March 2010 — European Commission v Kingdom of Belgium

(Case C-134/10)

(2010/C 161/25)

Language of the case: French

Parties

Applicant: European Commission (represented by: A. Nijenhuis and C. Vrignon, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

| — | declare that, by failing to transpose correctly Article 31 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), (1) the Kingdom of Belgium has failed to fulfil its obligations under that directive and Article 56 of the Treaty on the Functioning of the European Union; |
| --- | --- |

—

declare that, by failing to transpose correctly Article 31 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), (1) the Kingdom of Belgium has failed to fulfil its obligations under that directive and Article 56 of the Treaty on the Functioning of the European Union;

| — | order the Kingdom of Belgium to pay the costs. |
| --- | --- |

—

order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The European Commission raises three complaints in support of its action, which alleges infringement of the principle of proportionality by the contested national legislation, in particular with regard to the procedure and criteria leading to the award of must-carry status to radio and television networks.

First, it alleges that the defendant has failed to establish in a clear and foreseeable manner the objectives of general interest which justify the award of must-carry status. Broadcasters are therefore not in a position to ascertain in advance the nature and the scope of the conditions to be satisfied and the public service obligations it is required to observe.

Second, the Commission complains of the lack of transparency with regard to the award procedure, of the increased discretion conferred on the authorities in that the national legislation seems to impose on the bodies concerned the obligation to transmit all of the channels which it transmits and not only those channels pursuing the required objectives of general interest, as well as the discriminatory effect of the requirement as to establishment of those bodies in the national territory.

Third, the applicant alleges that the scope of Article 31 of the ‘Universal Service Directive’ was ignored with regard to making the broadcasting subject to the existence of a significant number of end-users of broadcast networks.

---

(1)  OJ 2002 L 108, p. 51.

---
```

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 828 Introduced in Senate (IS)]

<DOC>

116th CONGRESS
  1st Session
                                 S. 828

 To amend the Outer Continental Shelf Lands Act to prohibit oil-, gas-, 
 and methane hydrate-related seismic activities in the North Atlantic, 
Mid-Atlantic, South Atlantic, and Straits of Florida planning areas of 
          the outer Continental Shelf, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             March 14, 2019

Mr. Booker (for himself, Mr. Blumenthal, Mr. Whitehouse, Mr. Menendez, 
  Mrs. Shaheen, Ms. Warren, Mr. Sanders, Ms. Hassan, Mr. Cardin, Mr. 
 Markey, and Mrs. Gillibrand) introduced the following bill; which was 
    read twice and referred to the Committee on Energy and Natural 
                               Resources

_______________________________________________________________________

                                 A BILL

 
 To amend the Outer Continental Shelf Lands Act to prohibit oil-, gas-, 
 and methane hydrate-related seismic activities in the North Atlantic, 
Mid-Atlantic, South Atlantic, and Straits of Florida planning areas of 
          the outer Continental Shelf, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Atlantic Seismic Airgun Protection 
Act''.

SEC. 2. MORATORIUM ON OIL-, GAS-, AND METHANE HYDRATE-RELATED SEISMIC 
              ACTIVITIES IN NORTH ATLANTIC, MID-ATLANTIC, SOUTH 
              ATLANTIC, AND STRAITS OF FLORIDA PLANNING AREAS OF OUTER 
              CONTINENTAL SHELF.

    Section 11 of the Outer Continental Shelf Lands Act (43 U.S.C. 
1340) is amended by adding at the end the following:
    ``(i) Moratorium on Oil-, Gas-, and Methane Hydrate-Related Seismic 
Activities in North Atlantic, Mid-Atlantic, South Atlantic, and Straits 
of Florida Planning Areas.--Notwithstanding any other provision of law, 
no person or agency of the United States may conduct geological or 
geophysical activities (as those terms are described in the final 
programmatic environmental impact statement of the Bureau of Ocean 
Energy Management entitled `Atlantic OCS Proposed Geological and 
Geophysical Activities, Mid-Atlantic and South Atlantic Planning Areas' 
and completed February 2014) in support of oil, gas, or methane hydrate 
exploration and development in any area located in the North Atlantic, 
Mid-Atlantic, South Atlantic, or Straits of Florida planning areas of 
the outer Continental Shelf.''.
                                 <all>
```
<TABLE> <S> <C>

<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS AND CONSOLIDATED STATEMENTS OF INCOME FOUND IN THE
COMPANY'S FORM 10-Q FOR THE YEAR-TO-DATE AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<RESTATED> 
<MULTIPLIER> 1,000
<CURRENCY> CANADIAN
       
<S>                             <C>
<PERIOD-TYPE>                   6-MOS
<FISCAL-YEAR-END>                          DEC-31-1996
<PERIOD-END>                               JUN-30-1996
<EXCHANGE-RATE>                                 0.7316
<CASH>                                          14,797
<SECURITIES>                                    24,886
<RECEIVABLES>                                    7,505
<ALLOWANCES>                                         0
<INVENTORY>                                     72,829
<CURRENT-ASSETS>                               128,542
<PP&E>                                         481,045
<DEPRECIATION>                                  45,355
<TOTAL-ASSETS>                                 580,118
<CURRENT-LIABILITIES>                           57,234
<BONDS>                                              0
<PREFERRED-MANDATORY>                                0
<PREFERRED>                                          0
<COMMON>                                       376,316
<OTHER-SE>                                      83,643
<TOTAL-LIABILITY-AND-EQUITY>                   580,118
<SALES>                                        105,846
<TOTAL-REVENUES>                               105,846
<CGS>                                           81,383
<TOTAL-COSTS>                                   96,566
<OTHER-EXPENSES>                                 (976)
<LOSS-PROVISION>                                     0
<INTEREST-EXPENSE>                                   0
<INCOME-PRETAX>                                  7,857
<INCOME-TAX>                                     2,729
<INCOME-CONTINUING>                              5,105
<DISCONTINUED>                                       0
<EXTRAORDINARY>                                      0
<CHANGES>                                            0
<NET-INCOME>                                     5,105
<EPS-PRIMARY>                                     0.04<F1>
<EPS-DILUTED>                                     0.04<F1>
<FN>
<F1>USING US GAAP NET INCOME AND SFAS 128, BASIC AND DILUTED EPS ARE BOTH $0.03.
</FN>
        

</TABLE>