United States v. Harris , 158 F. App'x 561 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 14, 2005
Charles R. Fulbruge III
No. 04-51338 Clerk
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CULLEN REED HARRIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:91-CR-43-2
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Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Cullen Reed Harris, federal prisoner # 01864-063, moves for
leave to proceed in forma pauperis (“IFP”) in his appeal from the
district court’s denial of his motion for a nunc pro tunc order
challenging the sentences imposed following his convictions for
conspiracy to manufacture more than 1,000 grams of
methamphetamine and manufacturing more than 1,000 grams of
methamphetamine. The district court denied Harris leave to
proceed IFP on appeal, certifying that the appeal was not taken
in good faith. By moving for leave to proceed IFP, Harris is
*
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this opinion should not be published and is not precedent except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. 04-51338
-2-
challenging the district court’s certification. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P.
24(a)(5). However, Harris has not demonstrated any nonfrivolous
ground for appeal.
Harris argues that the sentence enhancement he received
pursuant to 21 U.S.C. § 841(b)(1)(A) was improper. For the first
time on appeal, he asserts that his sentence was void ab initio
because 18 U.S.C. § 3553(b)(1) was held unconstitutional in
United States v. Booker, 125 S. Ct. 738 (2005).
This appeal is “from the denial of a meaningless,
unauthorized motion.” See United States v. Early, 27 F.3d 140,
142 (5th Cir. 1994). We will not consider Harris’s Booker claim
because it was raised for the first time in an appeal from the
denial of a collateral attack on his sentence. See Whitehead v.
Johnson, 157 F.3d 384, 388 (5th Cir. 1998). Harris 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).
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. Harris is WARNED that the
filing or prosecution of frivolous appeals in the future will
subject him to sanctions. See FED. R. APP. P. 38; Clark v. Green,
814 F.2d 221, 223 (5th Cir. 1987).
MOTION FOR LEAVE TO PROCEED IFP DENIED; APPEAL DISMISSED AS
FRIVOLOUS; SANCTION WARNING ISSUED.