Summary Calendar UNITED STATES OF AMERICA v. Candido Gaytan-Ortiz

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-40466
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CANDIDO GAYTAN-ORTIZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CV-97
USDC No. 5:04-CR-616-1
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Candido Gaytan-Ortiz (Gaytan) pleaded guilty to possession with intent
to distribute more than 100 kilograms of marijuana and was sentenced to 63
months of imprisonment to be followed by five years of supervised release.
Gaytan filed a motion to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255, arguing that his sentence was unconstitutional in light of the
decision in United States v. Booker, 543 U.S. 220 (2005). The district court
United States Court of Appeals
Fifth Circuit
F I L E D
March 28, 2008
Charles R. Fulbruge III
Clerk

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No. 07-40466
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denied Gaytan’s § 2255 motion but granted a certificate of appealability (COA).
28 U.S.C. § 2253(c) provides,
(2) A certificate of appealability may issue . . . only if the applicant
has made a substantial showing of the denial of a constitutional
right.
(3) The certificate of appealability under paragraph (1) shall
indicate which specific issue or issues satisfy the showing required
by paragraph (2).
The district court discussed Fanfan and Booker issues, as well as ineffective
assistance of counsel, but concluded that the Fanfan and Booker error did not
affect Gaytan’s substantial rights and failed to indicate whether there was a
substantial showing of the denial of a constitutional right with respect to the
ineffective assistance issue. The court failed to clearly specify on which issue or
issues a COA was granted. This court therefore lacks jurisdiction to review the
district court’s denial of Gaytan’s § 2255 motion. See Muniz v. Johnson, 114 F.3d
43, 45 (5th Cir. 1997); United States v. Youngblood, 116 F.3d 1113, 1114 (5th Cir.
1997). Accordingly, we order a LIMITED REMAND to the district court for the
sole purpose of determining which issue or issues warrant the grant of a COA
and entering an appropriate order. Once the record is supplemented with a
certified copy of the order, the case shall be returned to this court for further
proceedings. Pending the district court’s compliance, this court retains
jurisdiction of this case for all other purposes.

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