Opinion
No. 18-40454
03-11-2019
UNITED STATES OF AMERICA, Plaintiff-Appellee v. JUAN GUTIERREZ, Defendant-Appellant
Summary Calendar Appeals from the United States District Court for the Southern District of Texas
USDC No. 2:10-CR-63-2 Before SMITH, HIGGINSON, and DUNCAN, Circuit Court Judges. PER CURIAM:
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. --------
Juan Gutierrez, federal prisoner # 24776-179, moves for leave to proceed in forma pauperis (IFP) on appeal from the denial of his petition for a writ of audita querela, in which he sought to challenge his sentence for conspiracy to possess with intent to distribute marijuana. Gutierrez contends that his sentence is no longer valid in light of Mathis v. United States, 136 S. Ct. 2243 (2016), because his prior Florida drug offense no longer qualifies as a controlled substance offense for purposes of the career offender guideline enhancement under U.S.S.G. §§ 4B1.1 and 4B1.2. He argues that he should have been allowed to pursue a writ of audita querela because his Mathis claim was not cognizable under any other avenue of federal postconviction relief.
By moving for leave to proceed IFP on appeal, Gutierrez is challenging the district court's certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into his good faith "is limited to whether the appeal involves legal points arguable on their merits (and therefore not frivolous)." Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted).
Irrespective of whether a writ of audita querela is available to Gutierrez, his challenge to his sentence does not present a nonfrivolous issue for appeal. See United States v. Olson, 849 F.3d 230, 232 (5th Cir. 2017); United States v. Ford, 509 F.3d 714, 716 (5th Cir. 2007), abrogated on other grounds by United States v. Tanksley, 848 F.3d 347, 350-52 (5th Cir.), supplemented by 854 F.3d 284 (5th Cir. 2017). Gutierrez's appeal is without arguable merit and is frivolous. See Baugh, 117 F.3d at 202; Howard, 707 F.2d at 220.
Accordingly, his motion for leave to proceed IFP is DENIED, and his appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2; Baugh, 117 F.3d at 202 & n.24.