United States v. Pate ( 2023 )

Case: 23-40353 Document: 00516906925 Page: 1 Date Filed: 09/25/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
September 25, 2023
No. 23-40353
Summary Calendar Lyle W. Cayce
Clerk
____________
United States of America,
Plaintiff—Appellee,
versus
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 Clement, Engelhardt, and Oldham, Circuit Judges.
Per Curiam:*
Frank Edwin Pate, federal prisoner # 30430-408, was convicted by a
jury 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 of
168 months of imprisonment, three years of supervised release, and
$2,829,586.84 restitution. This court granted the Government’s motion to
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-40353 Document: 00516906925 Page: 2 Date Filed: 09/25/2023
No. 23-40353
dismiss Pate’s direct appeal from that judgment. United States v. Pate, No.
16-40814 c/w No. 16-41317 (5th Cir. July 5, 2017) (unpublished). Over three
years after the entry of the amended judgment, Pate filed a second notice of
appeal challenging that same judgment. This court dismissed his appeal as
frivolous. United States v. Pate, No. 19-40928 (5th Cir. Apr. 2, 2020)
(unpublished).
Pate has now filed a third notice of appeal from his amended judgment
of conviction and sentence. He has also filed a motion to proceed pro se on
appeal.
We may dismiss an appeal during consideration of an interlocutory
motion if the appeal “is frivolous and entirely without merit.” 5th Cir.
R. 42.2. As noted, Pate has already filed a direct appeal from his amended
judgment of conviction and sentence. A defendant “is not entitled to two
appeals,” and a second appeal from the same conviction is “not properly
before this Court.” United States v. Arlt, 567 F.2d 1295, 1297 (5th Cir. 1978);
accord United States v. Rodriguez, 821 F.3d 632, 633-34 (5th Cir. 2016).
Because Pate’s appeal is not properly before this court, it is DISMISSED
as frivolous. See 5th Cir. R. 42.2; Arlt, 567 F.2d at 1297-98; see also
Rodriguez, 821 F.3d at 633-34. His motion to proceed pro se on appeal is
DENIED.
Pate is WARNED that the filing of another notice of appeal of the
2016 judgment or the filing of any other frivolous, repetitive, or otherwise
abusive pleadings will invite the imposition of sanctions, which may include
dismissal, monetary sanctions, and restrictions on his ability to file pleadings
in this court and any court subject to this court’s jurisdiction. See Coghlan v.
Starkey, 852 F.2d 806, 817 n.21 (5th Cir. 1988).
2