USA v. Joseph Plummer

Filing

UNPUBLISHED OPINION ORDER FILED. [10-50177 Dismissed as Frivolous] Judge: FPB , Judge: EBC , Judge: JWE Mandate pull date is 10/06/2010; denying motion to proceed IFP filed by Appellant Mr. Joseph Leon Plummer [6508845-2] [10-50177]

USA v. Joseph Plummer

Doc. 0

Case: 10-50177

Document: 00511233937

Page: 1

Date Filed: 09/15/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50177 S u m m a r y Calendar September 15, 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. J O S E P H LEON PLUMMER, 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. 6:05-CR-218-1

B e fo r e BENAVIDES, CLEMENT, and ELROD, Circuit Judges. P E R CURIAM:* J o s e p h Leon Plummer, federal prisoner # 69035-080, was convicted of p o s s e s s io n of a firearm by a convicted felon (Count One) and possession of an u n r e g is t e r e d firearm (Count Two). The district court sentenced him to 300 m o n th s in prison on Count One and 120 months on Count Two with the s e n te n c e s to run concurrently. Plummer seeks leave to proceed in forma

p a u p e r is (IFP) on appeal from the district court's denial of his petition for writ

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Case: 10-50177

Document: 00511233937 Page: 2 No. 10-50177

Date Filed: 09/15/2010

o f audita querela challenging his sentence in light of United States v. Rodriquez, 5 5 3 U.S. 377 (2008), and U.S.S.G. § 4B1.2, cmt. (n.1). By moving for leave to proceed IFP on appeal, Plummer is challenging the d is t r ic t court's certification that his appeal presents no nonfrivolous issues and is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1 9 9 7 ) . Plummer argues that two of the prior convictions used to enhance his s e n te n c e did not meet the criteria outlined in Rodriquez and § 4B1.2, cmt. (n.1) a n d , as a result, he is entitled to relief in the form of a writ of audita querela. "The writ of audita querela permits a defendant to obtain relief against a ju d g m e n t because of some legal defense arising after the judgment." United S ta te s v. Banda, 1 F.3d 354, 356 (5th Cir. 1993). A prisoner may not seek a writ o f audita querela if he "may seek redress under § 2255." Id. P lu m m e r cannot assert this claim in a petition for writ of audita querela b e c a u s e redress is available under § 2255. See id. Moreover, even if Plummer is entitled to raise this claim in a petition for writ of audita querela, the claim is unavailing. Plummer's appeal is without arguable merit and is thus frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly,

P lu m m e r 's request for leave to proceed IFP is denied, and the appeal is d is m is s e d . See 5TH CIR. R. 42.2. IFP DENIED. APPEAL DISMISSED.

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