USA v. Daniel Dominguez


UNPUBLISHED OPINION ORDER FILED. [10-50153 Dismissed as frivolous] Judge: JLD , Judge: EBC , Judge: JWE Mandate pull date is 11/12/2010; denying motion to proceed IFP filed by Appellant Mr. Daniel Dominguez [6529057-2] [10-50153]

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USA v. Daniel Dominguez Doc. 0 Case: 10-50153 Document: 00511269902 Page: 1 Date Filed: 10/21/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-50153 S u m m a r y Calendar October 21, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. D A N I E L DOMINGUEZ, D e fe n d a n t -A p p e lla n t A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 5:99-CR-371-1 B e fo r e DENNIS, CLEMENT, and ELROD, Circuit Judges. P E R CURIAM:* D a n ie l Dominguez seeks leave to proceed in forma pauperis (IFP) on a p p e a l. To proceed IFP on appeal, Dominguez must show that he is a pauper a n d that he will raise a nonfrivolous issue on appeal. P o lic e Dep't, 811 F.2d 260, 261 (5th Cir. 1986). Dominguez filed in the district court two motions, asserting that he had s a t is fie d his criminal judgment that was entered on November 9, 2000. Dominguez's motions were unauthorized motions which the district court was 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * See Jackson v. Dallas Case: 10-50153 Document: 00511269902 Page: 2 Date Filed: 10/21/2010 No. 10-50153 w it h o u t jurisdiction to entertain. See United States v. Early, 27 F.3d 140, 142 (5 t h Cir. 1994). The district court could not construe the motions as FED. R . CRIM. P. 35 motions because they were neither made by the Government nor m a d e within seven days of sentencing. See FED. R. CRIM P. 35; Early, 27 F.3d at 1 4 1 . The motions were also not authorized under 18 U.S.C. 3582(c)(2) because t h e y were not based upon an amendment to the Sentencing Guidelines. See 3582(c)(2); Early, 27 F.3d at 142. In addition, the district court could not c o n s t r u e the motions under 18 U.S.C. 3742, as relief thereunder is reserved o n ly for direct appeals. See 3742. Finally, the district court did not have ju r is d ic t io n to construe the motions as 28 U.S.C. 2255 motions because D o m in g u e z had previously filed a 2255 motion and had not received permission fr o m this court to file a successive 2255 motion. See Hooker v. Sivley, 187 F.3d 6 8 0 , 681-82 (5th Cir. 1999). Dominguez's appeal is without arguable merit and is therefore dismissed a s frivolous. Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5th Cir. R . 42.2. IFP DENIED; APPEAL DISMISSED. 2

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