United States v. Lopez ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 10, 2009
No. 08-30548
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO B. LOPEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
No. 2:93-CR-20046-2
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Francisco Lopez, federal prisoner # 56053-079, was convicted in the Wes-
tern District of Louisiana. At that time, he was serving a sentence in the Nor-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-30548
thern District of Texas for a related drug conviction. He filed a motion pursuant
to F ED. R. C RIM. P. 36 seeking to have his Louisiana judgment corrected so that
he can receive credit for the time served on his federal conviction in Texas before
beginning his federal sentence in Louisiana. The district court denied the mo-
tion and Lopez’s application to proceed in forma pauperis (“IFP”) on appeal. Lo-
pez now appeals the denial of IFP status.
A movant for leave to proceed IFP on appeal must show that he is a pau-
per and that the appeal is taken in good faith, i.e., that it presents a nonfrivolous
issue. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). “Frivolous” is de-
fined as “lack[ing] an arguable basis in law or fact.” Taylor v. Johnson, 257 F.3d
470, 472 (5th Cir. 2001). If the appeal is frivolous, this court may dismiss it sua
sponte. Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997); 5 TH C IR. R.
42.2. A claim for time served before the date of a federal sentence is not cogniz-
able in a proceeding pursuant to F ED. R. C RIM. P. 36. See United States v. Mares,
868 F.2d 151, 151 (5th Cir.1989).
Lopez’s appeal thus presents no non-frivolous issue. Accordingly, the mo-
tion to proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See
5 TH C IR. R. 42.2.
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