USA v. Dexter Hewitt


UNPUBLISHED OPINION ORDER FILED. [15-50323 Dismissed as Frivolous] Judge: EGJ , Judge: JEG , Judge: GJC Mandate pull date is 09/01/2015; denying motion to proceed IFP filed by Appellant Mr. Dexter Darnell Hewitt [7920901-2] [15-50323]

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Case: 15-50323 Document: 00513149593 Page: 1 Date Filed: 08/11/2015 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 15-50323 Summary Calendar August 11, 2015 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. DEXTER DARNELL HEWITT, also known as Dexter Curnell Hewitt, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 6:07-CR-149-1 Before JOLLY, GRAVES, and COSTA, Circuit Judges. PER CURIAM: * Dexter Darnell Hewitt, federal prisoner # 83401-180, seeks leave to proceed in forma pauperis (IFP) in his appeal of the denial of a motion to correct a purported clerical error in the record under Federal Rule of Criminal Procedure 36. According to Hewitt, the probation officer erroneously used two 1990 convictions in the presentence report (PSR) to determine that Hewitt was a career offender for purposes of calculating his guidelines sentencing range. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 15-50323 Document: 00513149593 Page: 2 Date Filed: 08/11/2015 No. 15-50323 The district court denied relief because Hewitt did not allege the type of error correctable under Rule 36. The court ultimately reissued its ruling after granting Hewitt’s motion for reconsideration. The court denied leave to proceed IFP on appeal and certified that the appeal was not taken in good faith. By moving for leave to proceed IFP, Hewitt is challenging the district court’s certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a)(5). Our inquiry into whether the appeal is taken in 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 citations omitted). We consider the IFP motion de novo. See United States v. Boutwell, 896 F.2d 884, 890 (5th Cir. 1990) (one-judge order). Hewitt contends that the district court erred in determining that he did not identify a correctable error under Rule 36. He argues that his two 1990 convictions were too old to use under the Sentencing Guidelines and that the error was subject to correction under Rule 36 because the PSR is part of the record, citing United States v. Mackay, 757 F.3d 195 (5th Cir. 2014). He contends that the error affects his substantial rights because the Bureau of Prisons uses the PSR for classification and designation purposes. While the PSR is part of the record for purposes of Rule 36, Mackay, 757 F.3d at 198, Hewitt has not identified a clerical error. He has not shown that “the court intended one thing but by merely clerical mistake or oversight did another.” United States v. Buendia-Rangel, 553 F.3d 378, 379 (5th Cir. 2008) (internal quotation marks and citation omitted). Instead, he seeks to correct an allegedly erroneous application of the Sentencing Guidelines. Because Rule 36 does not permit new factual or legal analyses, see Mackay, 757 F.3d at 200, Hewitt’s appeal is frivolous and not taken in good faith, see Howard, 707 F.2d 2 Case: 15-50323 Document: 00513149593 Page: 3 Date Filed: 08/11/2015 No. 15-50323 at 220. The motion for leave to proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. 3

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