USA v. Rudy Arriola

Filing

UNPUBLISHED OPINION FILED. [16-40259 Affirmed ] Judge: CDK , Judge: JLD , Judge: GJC Mandate pull date is 07/03/2017 [16-40259]

Case: 16-40259

Document: 00513988230

Page: 1

Date Filed: 05/11/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-40259
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
May 11, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RUDY ARRIOLA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:13-CV-377
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *

Rudy Arriola, federal prisoner # 26353-001, pleaded guilty to being a
felon in possession of a firearm and was sentenced under the Armed Career
Criminal Act (ACCA) to 180 months in prison based upon his three prior Texas
convictions for burglary of a habitation and his prior Texas conviction for
burglary of a building. He appeals the district court’s dismissal of his Federal
Rule of Civil Procedure 60(b) motion, which followed the dismissal of his 28

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40259

Document: 00513988230

Page: 2

Date Filed: 05/11/2017

No. 16-40259
U.S.C. § 2255 motion. The district court found that the Rule 60(b) motion,
which raised a new claim that his predicate offenses were invalidated under
Johnson v. United States, 135 S. Ct. 2551 (2015), was an unauthorized
successive § 2255 motion over which it lacked jurisdiction. Nevertheless, the
district court granted a certificate of appealability on the issue.
Arriola does not challenge the district court’s determination that his
postjudgment motion raised a new claim for relief that rendered it an
unauthorized successive § 2255 motion. Instead, he argues that he is actually
innocent of his sentence, that he is entitled to equitable tolling, and that his
burglary convictions are no longer predicate offenses based on Johnson. When
an appellant fails to identify any error in the district court’s analysis, it is the
same as if the appellant had not appealed that issue. Brinkmann v. Dallas
Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Although pro se
briefs are afforded liberal construction, arguments must be briefed in order to
be preserved. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Because
Arriola fails to raise any argument regarding the district court’s dismissal of
the Rule 60(b) motion, any challenge to the dismissal is abandoned. Arriola
has abandoned his sole issue on appeal by failing to brief it, and, regardless,
because his Rule 60(b) motion raised a new claim for relief, it was a successive
§ 2255 motion over which the district court lacked jurisdiction, as he failed to
receive the requisite authorization from this court. See Gonzalez v. Crosby, 545
U.S. 524, 531-32 (2005); see also United States v. Key, 205 F.3d 773, 774 (5th
Cir. 2000). Consequently, Arriola has not shown that the district court abused
its discretion by dismissing his Rule 60(b) motion. See Hernandez v. Thaler,
630 F.3d 420, 428 (5th Cir. 2011).
The judgment of the district court is AFFIRMED.

2