United States v. Joe Ramirez ( 2018 )

Case: 18-10680 Document: 00514684613 Page: 1 Date Filed: 10/16/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-10680 FILED
October 16, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
JOE ARZOLA RAMIREZ,
Defendant−Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 6:06-CR-25-1
Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM: *
For the second time, Joe Ramirez, federal prisoner #35876-177, appeals
his 2007 sentence for possession with intent to distribute 50 grams or more of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10680 Document: 00514684613 Page: 2 Date Filed: 10/16/2018
No. 18-10680
methamphetamine. See United States v. Ramirez, 274 F. App’x 407, 407 (5th
Cir. 2008) (per curiam) (dismissing Ramirez’s first appeal per Anders v. Cali-
fornia, 386 U.S. 738 (1967)). Ramirez has also filed a motion to proceed pro se.
Although Ramirez’s instant notice of appeal is untimely, see FED. R. APP. P.
4(b)(1)(A), we pretermit the timeliness issue because we conclude that the
appeal is frivolous, see United States v. Martinez, 496 F.3d 387, 388 (5th Cir.
2007) (per curiam); 5TH CIR. R. 42.2.
Because “[a] criminal defendant is not entitled to two appeals,” United
States v. Rodriguez, 821 F.3d 632, 633 (5th Cir. 2016), Ramirez’s second appeal
of his sentence “is not properly before this Court,” United States v. Arlt,
567 F.2d 1295, 1297 (5th Cir. 1978) (per curiam). Even construing Ramirez’s
notice of appeal as a request for authorization to file a successive 28 U.S.C.
§ 2255 motion based on Mathis v. United States, 136 S. Ct. 2243 (2016), and
United States v. Hinkle, 832 F.3d 569 (5th Cir. 2017), cert. denied, 138 S. Ct.
1453 (2018), it is wholly meritless because neither Mathis nor Hinkle provides
a basis for granting successive authorization, see In re Lott, 838 F.3d 522,
522−23 (5th Cir. 2016) (per curiam); In re Sparks, 657 F.3d 258, 260 (5th Cir
2011) (per curiam).
Accordingly, the appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2.
Ramirez’s motion to proceed pro se is DENIED as moot.
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