USA v. Gonzalez-Longoria

Filing 920090415

Opinion

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 08-50848 Summary Calendar April 15, 2009 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA Plaintiff-Appellee v. JOSE LEON GONZALEZ-LONGORIA, also known as Alfred Martinez, also known as Juan Vela Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 5:92-CR-65-1

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges. PER CURIAM:* Jose Leon Gonzalez-Longoria, Jr., federal prisoner # 59761-079, seeks leave to proceed in forma pauperis (IFP) to appeal the denial for lack of jurisdiction of his motion to show cause why the Government had not filed a motion under 18 U.S.C. § 3573 for remission of his $200,000 fine. The district court denied IFP and certified that Gonzalez-Longoria's appeal was not taken in good faith. By moving for leave to proceed IFP, Gonzalez-Longoria is

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.

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No. 08-50848 challenging the district court's certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); F ED. R. A PP. P. 24(a)(5). On appeal, Gonzalez-Longoria does not addresses the threshold issue of whether the district court had jurisdiction to consider his motion to show cause. Gonzalez-Longoria's motion to show cause was an unauthorized motion that the district court was without jurisdiction to entertain. See United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994). Gonzalez-Longoria's appeal is from the denial of that unauthorized motion. Gonzalez-Longoria's appeal does not involve legal points arguable on their merits, and it is therefore frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, Gonzalez-Longoria's IFP motion is DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202; 5 TH C IR. R. 42.2.

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