United States v. Frank Pate ( 2020 )

Case: 19-40928 Document: 00515370541 Page: 1 Date Filed: 04/02/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 2, 2020
No. 19-40928
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANK EDWIN PATE,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:14-CR-125-1
Before HAYNES, GRAVES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Frank Edwin Pate was convicted by jury verdict of two counts of wire
fraud and one count of mail fraud. In an amended judgment issued in May
2016, the district court sentenced Pate to a total term of 168 months of
imprisonment, three years of supervised release, and $2,829,586.84
restitution. In June 2017, we granted the Government’s motion to dismiss
Pate’s direct appeal from that judgment.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40928 Document: 00515370541 Page: 2 Date Filed: 04/02/2020
No. 19-40928
Over three years after entry of that amended judgment, Pate filed a
second notice of appeal challenging that same judgment. He now moves this
court for the appointment of counsel. We may dismiss an appeal when
considering an interlocutory motion if the appeal “is frivolous and entirely
without merit.” 5TH CIR. R. 42.2. Pate is not entitled to two appeals, so his
second appeal from the same conviction is “not properly before this Court.”
United States v. Arlt, 567 F.2d 1295, 1296-97 (5th Cir. 1978); accord United
States v. Rodriguez, 821 F.3d 632, 633-34 (5th Cir. 2016). A defendant is
entitled to the appointment of counsel only for his first direct appeal. See
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).
Pate’s motion for appointment of counsel is DENIED, and the appeal is
DISMISSED as frivolous. See 5TH CIR. R. 42.2.
2