United States v. Alvin Byrd, Jr. , 422 F. App'x 302 ( 2011 )

Case: 10-50079 Document: 00511407922 Page: 1 Date Filed: 03/11/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 11, 2011
No. 10-50079
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ALVIN W. BYRD, JR., also known as Alvin Byrd,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:07-CR-128-1
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Alvin W. Byrd, Jr., was convicted by a jury of one count of wire fraud, one
count of interstate transportation of stolen property, and five counts of money
laundering. The district court sentenced Byrd to 150 months in prison on the
fraud and money laundering counts, and 120 months in prison on the interstate
transportation counts, to run concurrently and to be followed by a three-year
term of supervised release. The court also ordered Byrd to pay a $100,000 fine
and $271,400 in restitution, while ordering Byrd to forfeit a 2006 Hummer H2
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 10-50079
and $87,000 in cash as proceeds and assets traceable to the wire fraud offense.
On direct appeal, we affirmed Byrd’s conviction and sentence and the court’s
preliminary order of forfeiture. See United States v. Byrd, 377 F. App’x 374,
376–80 (5th Cir. 2010).
Following the entry of judgment, and during the pendency of the direct
appeal, the district court granted the government’s motion for an expedited
interlocutory sale of Byrd’s assets and the court issued a final order of forfeiture.
Byrd appealed these rulings separately and sought leave to proceed in forma
pauperis (IFP) on appeal in each. See United States v. Byrd, 382 F. App’x 384,
385 (5th Cir. 2010); United States v. Byrd, No. 09-50978, 2010 U.S. App. LEXIS
14169 (5th Cir. June 22, 2010). In June 2010, we denied Byrd’s motions to
proceed IFP and dismissed the two appeals as frivolous. See 382 F. App’x at 386;
2010 U.S. App. LEXIS 14169, at *4.
The instant appeal flows from a separate set of IFP motions filed in the
trial court, three of which overlap with the appeals discussed above. In five
separate motions filed in the district court, Byrd moved for leave to proceed IFP
on appeal to challenge the court’s: (i) preliminary order of forfeiture; (ii) final
order of forfeiture; (iii) ruling on the Government’s motion for an expedited
interlocutory sale of assets; and (iv) ruling on Byrd’s motion for a judgment of
acquittal, as well as (v) to take an appeal relating to a petition for writ of
mandamus filed in December 2008. In a consolidated order, the district court
denied IFP status as to all five matters, finding that the appeals presented no
non-frivolous issues and were not taken in good faith. It is this order that Byrd
now appeals from.
This court can authorize Byrd to proceed IFP on appeal if he is unable to
pay the costs of the appeal and the appeal is taken in good faith. 28 U.S.C.
§ 1915(a); Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). The court’s inquiry
into Byrd’s good faith “is limited to whether the appeal involves ‘legal points
arguable on their merits (and therefore not frivolous).’” Id. at 220 (citation
2
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No. 10-50079
omitted). The court may dismiss the appeal sua sponte under 5 TH C IR. R. 42.2.
where it is apparent that the case presents no meritorious issues. See Baugh v.
Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997).
Byrd’s instant appeal does not present any non-frivolous appellate issues.
Byrd’s challenges to the district court’s preliminary order of forfeiture and denial
of a motion for acquittal simply renew claims that were already decided on direct
appeal. See Byrd, 377 F. App’x at 376–79. As for the court’s rulings on the
interlocutory sale of assets and the final order of forfeiture, we have already
passed on those issues in separate appeals and found them to be frivolous. See
Byrd, 382 F. App’x at 386; Byrd, 2010 U.S. App. LEXIS 14169, at *4.1 The final
basis for the instant appeal is likewise without merit. No action was taken
Byrd’s petition for writ of mandamus when filed in December 2008 because the
issues raised in the petition were also presented in Byrd’s opening merits brief.
To the degree that Byrd’s IFP request relates to his mandamus petition, the
issues raised in that petition were already decided on direct appeal.
Because Byrd’s appeal is without arguable merit, his motion for leave to
proceed IFP is denied and the appeal is dismissed as frivolous. See Howard, 707
F.2d at 220; 5 TH C IR. R. 42.2. Since Byrd’s appeal fails to present any non-
frivolous issues, he has accumulated his third strike under 28 U.S.C. § 1915(g).
Except for cases involving an imminent danger of serious physical injury, Byrd
is barred under § 1915(g) from proceeding in forma pauperis in any civil action
or appeal filed while he is incarcerated. See Brewster v. Dretke, 587 F.3d 764,
770 (5th Cir. 2009). He may proceed in subsequent civil cases under the fee
provisions of 28 U.S.C. §§ 1911–14.
IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED.
1
For purposes of 28 U.S.C. § 1915(g), the court’s dismissal of these appeals as frivolous
count as Byrd’s first and second strikes.
3