* Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4. 

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 95-40992

(Summary Calendar)

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GREGORIO GARZA-NEVAREZ,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

(B-95-CR-75-1)

September 17, 1996

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

Defendant Gregorio Garza-Nevarez (“Garza”) appeals from the

district court’s refusal to order his federal sentence to run

concurrently with his state sentences. Finding no reversible

error, we affirm.

Garza was indicted and pleaded guilty to entering the country

after deportation, in violation of 8 U.S.C. § 1326. Prior to this,
2 The discussion at sentencing was as follows:

[COUNSEL]: Your Honor, the recommendation, I believe, by Probation is

that this run concurrent with the State time. Would the Court consider

making that recommendation.

THE COURT: It is not really up to the Court. It is really up to the State

-2-

Garza had pleaded guilty to state charges of possession and

delivery of marijuana, for which he received concurrent ten-year

probated sentences. Approximately three years later, Garza was

arrested for possession and delivery of cocaine, and released by

the state court on bond. Garza was subsequently deported for

having a state felony record, and was later arrested in the United

States for failure to appear in the cocaine cases. He pleaded

guilty to two counts of delivery of a controlled substance in the

cocaine cases and was sentenced to serve twelve years for each

count. Garza’s probation in the marijuana cases was revoked, and

he was sentenced to ten years on each count.

As to Garza’s sentence in this case, the Presentence Report

(“PSR”) recommended that he be sentenced to 77 months in prison,

and, in light of U.S.S.G. § 5G1.3(c), that the sentence run

concurrently to any undischarged state term. The Government filed

a motion for downward departure pursuant to U.S.S.G. § 5K1.1, which

the district court granted. Accordingly, the district court

sentenced Garza to 47 months in prison. Counsel for Garza then

asked the district court whether it would consider following the

recommendation of the PSR that the sentence run concurrently with

Garza’s state sentences. The district court refused to do so.2
Court as you well know.

I think you are better off not even asking me to do anything. Leave it up

to the State Court, because I would not be inclined to do that. For very obvious

reasons.

[COUNSEL]: Yes, sir.

-3-

Garza argues that the district court erred when it failed to

consider U.S.S.G. § 5G1.3 and 18 U.S.C. § 3553(a) before ordering

that his sentence run consecutively to the undischarged terms of

his state sentences. We have previously held that, where

§ 5G1.3(c) was found to be applicable, it was reversible error for

the district court not to consider the provision, its methodology,

and explain why it was not employed. United States v. Hernandez,

64 F.3d 179, 183-84 (5th Cir. 1995). By failing to properly object

at sentencing, however, Garza has waived his right to full

appellate review. “A party must raise a claim of error with the

district court in such a manner so that the district court may

correct itself and thus, obviate the need for our review.” United

States v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995) (internal

quotation marks omitted), cert. denied, __ U.S. __, 116 S. Ct. 963,

133 L. Ed. 2d 884 (1996). Although Garza’s counsel asked the

district court whether it would consider following the PSR’s

recommendation that the sentences run concurrently, counsel did not

offer any particular legal basis for doing so, and did not cite the

relevant Sentencing Guidelines provision. Moreover, when from the

district court’s response it appeared, as Garza argues on appeal,

that the court believed it was without power to order the sentences
-4-

to run concurrently, Garza’s counsel did not attempt to inform the

court otherwise or to lodge any objection. Accordingly, we find

that Garza has failed to preserve the claimed error, and we thus

review only for plain error. See id. at 1433-34 (reviewing for

plain error where defendant only made a general objection).

Under plain error review, we will remedy the error only in the

most exceptional cases. United States v. Calverley, 37 F.3d 160,

162 (5th Cir. 1994) (en banc), cert. denied, __ U.S. __, 115 S. Ct.

1266, 131 L. Ed. 2d 145 (1995). The appellant has the burden to

show that there is an error, that it is “clear” or “obvious,” and

that it affects his substantial rights. United States v. Olano,

507 U.S. 725, __, 113 S. Ct. at 1777-79, 123 L. Ed. 2d 508 (1993).

Even where the appellant carries his burden, the Supreme Court has

directed that we exercise our discretion to correct such a

forfeited error only if the error “seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.”

Id. at 735-36, 113 S. Ct. at 1779 (internal quotation marks

omitted).

Even if we assume that the district court erred by not

considering § 5G1.3(c) and explaining why it was not employed, we

find that Garza has failed to show that this error amounted to

“plain error.” The 1995 version of § 5G1.3(c) provides that in any

case not covered under subsections (a) or (b), “the sentence for

the instant offense may be imposed to run concurrently, partially
3 In addition, 18 U.S.C. § 3584 directs the district court, when

considering whether to impose concurrent or consecutive terms, to consider the

factors set forth in § 3553(a). In turn, 18 U.S.C. 3553(a) lists, as one of the

factors to be considered, any pertinent policy statements issued by the

Sentencing Commission. We have read this directive to include the policy

statement found at U.S.S.G. § 5G1.3(c). Hernandez, 64 F.3d at 182-83.

-5-

concurrently, or consecutively to the prior undischarged term of

imprisonment to achieve a reasonable punishment for the instant

offense.” U.S.S.G. § 5G1.3(c).

3 As we noted in United States v.

Torrez, 40 F.3d 84 (5th Cir. 1994), this provision and the

methodology suggested in application note 3 are permissive only.

40 F.3d at 87. In other words, even if the district court

considers the provision and its application note, it is free to

decline to apply them. Id. We note that the district court in

this case expressed its disinclination to have the sentences run

concurrently. Accordingly, as in Torrez, we find that the

Defendant has not made the requisite showing of prejudice. See id.

at 88. We therefore do not need to address whether the alleged

error in this case is of the type that seriously affects the

“fairness, integrity or public reputation of judicial proceedings.”

For the foregoing reasons, we AFFIRM.