USA v. Cesar Chavez-Barraza


UNPUBLISHED OPINION ORDER FILED. [10-50628 Dismissed as frivolous ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 11/30/2010 for Appellant Cesar Chavez-Barraza; mooting in light of the Court's opinion motion to proceed pro se filed by Appellant Mr. Cesar Chavez-Barraza [6590980-3] [10-50628]

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USA v. Cesar Chavez-Barraza Case: 10-50628 Document: 00511288468 Page: 1 Date Filed: 11/09/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-50628 S u m m a r y Calendar November 9, 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. C E S A R CHAVEZ-BARRAZA, 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. 3:05-CR-947-1 B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* C e s a r Chavez-Barraza, federal prisoner # 58304-180, filed a notice of a p p e a l seeking a review of his 2006 sentence pursuant to 18 U.S.C. 3742. However, this statute is unavailable to Chavez-Barraza, whose conviction we p r e v io u s ly affirmed on direct appeal. See United States v. Chavez-Barraza, 237 F . App'x 946 (5th Cir. 2007). Although 3742 provides that a defendant may d ir e c t ly appeal his sentence, the statute provides no mechanism through which 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 10-50628 Document: 00511288468 Page: 2 Date Filed: 11/09/2010 No. 10-50628 h e may reopen a direct appeal. The instant appeal is without arguable merit, a n d it is, therefore, dismissed as frivolous. See 5th Cir. R. 42.2. T h is is not Chavez-Barraza's first attempt to obtain a second appeal via 3742. Chavez-Barraza previously filed such a notice of appeal, which the d is t r ic t court construed as a motion for an extension of time to file a notice of a p p e a l and denied it. We thereafter dismissed the appeal. We warn ChavezB a r r a z a that if he files another notice of appeal seeking to attack the 2006 ju d g m e n t pursuant to 3742, sanctions will be ordered that could include, but a r e not limited to, dismissal, monetary costs, and restrictions on his entitlement t o file pleadings in this court and any court subject to this court's jurisdiction. A P P E A L DISMISSED; SANCTION WARNING ISSUED. 2

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