United States v. Johnny Garcia-Esparza , 429 F. App'x 412 ( 2011 )

Case: 10-50496 Document: 00511516015 Page: 1 Date Filed: 06/21/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 21, 2011
No.10-50496
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOHNNY GARCIA-ESPARZA, also known as Gira,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:08-CV-390
Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
Following the district court’s denial of his 28 U.S.C. § 2255 motion
challenging his conviction on charges related to his participation in a criminal
organization, Johnny Garcia-Esparza, federal prisoner # 43813-080, moves this
court for authorization to proceed in forma pauperis (IFP) on appeal. The
district court sentenced Garcia-Esparza to 660 months of imprisonment on one
count, to run concurrently with 240 months of imprisonment on each of several
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50496 Document: 00511516015 Page: 2 Date Filed: 06/21/2011
No. 10-50496
other counts, and to run consecutively to a 60-month term of imprisonment on
one final count.
Garcia-Esparza asserts that he is impoverished and reurges a number of
arguments this court has previously considered and rejected. He additionally
avers that his trial counsel provided ineffective assistance by failing to challenge
the trial court’s alleged non-adherence to its stated rule excluding witnesses
from the court room except when testifying. Because Garcia-Esparza has raised
no “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); he has failed to show that the district court erred in certifying
that his appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997).
IT IS ORDERED that Garcia-Esparza’s IFP motion is DENIED. See
Howard, 707 F.2d at 219-20. His appeal is DISMISSED as frivolous. See 5th
Cir. R. 42.2; Baugh, 117 F.3d at 202 n.24.
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