IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10070

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GENE IRVING GARLAND, JR.,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:00-CR-197-1

Before WIENER, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Gene Irving Garland, Jr., was convicted of one 

count of securities fraud in violation of 15 U.S.C. §§ 77q(a) and 77x (Count 1); 

62 counts of mail fraud in violation of 18 U.S.C. § 1341 (Counts 2-63); 34 counts 

of money laundering, larceny, and theft and aiding and abetting in violation of 

18 U.S.C. §§ 2 and 1956(a)(l)(A)(i) (Counts 64-97); 18 counts of money 

laundering in violation of §§ 2(b) and 1956(a)(l)(A)(i) (Counts 98-115); and five 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

January 23, 2014

Lyle W. Cayce

Clerk

 

 Case: 13-10070 Document: 00512510734 Page: 1 Date Filed: 01/23/2014
No. 13-10070

counts of money laundering in violation of 18 U.S.C. § 1957. Garland filed a 

28 U.S.C. § 2241 petition, and was successful in having his convictions on 

Counts 64 through 115 vacated.

Garland was resentenced and now appeals the sentence of 252 months 

of imprisonment imposed for the amended judgment of conviction. He asserts 

that the sentence is procedurally and substantively unreasonable.

Garland did not present rebuttal evidence to demonstrate that the 

supplemental presentence report was “materially untrue, inaccurate or 

unreliable.” United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998). We 

therefore review Garland’s challenges to the facts underlying the application 

of the Sentencing Guidelines enhancements for plain error. See Puckett v. 

United States, 556 U.S. 129, 134-35 (2009). We have “held that questions of 

fact capable of resolution by the district court upon proper objection at 

sentencing can never constitute plain error.” United States v. Conn, 657 F.3d 

280, 284 (5th Cir. 2011) (internal quotation marks and citation omitted). 

Garland has not demonstrated any plain procedural error.

We review the substantive reasonableness of the sentence imposed 

under an abuse-of-discretion standard, taking into account the totality of the 

circumstances. See Gall, 552 U.S. at 51. A within-guidelines sentence is 

presumptively reasonable. United States v. Newson, 515 F.3d 374, 379 (5th 

Cir. 2008). To rebut the presumption, Garland had to establish that the 

district court failed to account for a significant sentencing factor, gave 

significant weight to an “irrelevant or improper factor,” or made “a clear error 

of judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 

173, 186 (5th Cir. 2009). Viewed in light of the totality of circumstances, 

Garland has not shown that the district court abused its discretion by imposing 

the within-guidelines sentence, see Gall, 552 U.S. at 51, and he has not 

2

 Case: 13-10070 Document: 00512510734 Page: 2 Date Filed: 01/23/2014
No. 13-10070

rebutted the presumption that his sentence is reasonable, see Cooks, 589 F.3d 

at 186.

To the extent that Garland contends that his counsel was ineffective for 

failing to challenge the enhancements to the PSR, the record is insufficiently 

developed to allow consideration of such an argument on this direct appeal. 

Such claims generally are not resolved on direct appeal when they have not 

been developed in the district court. See United States v. Cantwell, 470 F.3d 

1087, 1091 (5th Cir. 2006). The Supreme Court has emphasized that a 28 

U.S.C. § 2255 motion is the preferred method for raising a claim of ineffective 

assistance of counsel. See Massaro v. United States, 538 U.S. 500, 503-04 

(2003).

AFFIRMED.

3

 Case: 13-10070 Document: 00512510734 Page: 3 Date Filed: 01/23/2014