United States v. Gonzalez

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 17, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-50843
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NELSON AGUSTIN GONZALEZ,
also known as Luis Roman, also known as El Cubano,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:98-CR-27-1
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Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
Nelson Agustin Gonzalez, federal prisoner # 03792-131, moves
for leave to proceed in forma pauperis (IFP) on appeal and has
filed a brief in support of his appeal. Relying on United States
v. Booker, 543 U.S. 220 (2005), Gonzalez seeks to challenge the
district court’s denial of his 18 U.S.C. § 3582(c)(2) motion to
reduce the sentence he received for engaging in a continuing
criminal enterprise, possession of marijuana with the intent to
distribute, money laundering, and being a felon in possession of

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No. 05-50843
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a firearm. The district court also denied Gonzalez’s motion for
leave to proceed IFP and certified that an appeal would not be
taken in good faith.
Gonzalez’s IFP motion is construed as a challenge to the
district court’s certification. See Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997). He has failed to show that his 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 omitted); see § 3582; United
States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994). Accordingly, the
motion for leave to proceed IFP on appeal is DENIED, and the
appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202
& n.24; 5TH CIR. R. 42.2. Gonzalez is WARNED that the filing or
prosecution of frivolous appeals in the future will subject him
to sanctions.

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