United States v. Fernando Lemus-Gonzalez

Case: 17-40162 Document: 00514239685 Page: 1 Date Filed: 11/16/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40162 FILED
Summary Calendar November 16, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
Clerk
Plaintiff-Appellee
v.
FERNANDO LEMUS-GONZALEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:07-CR-451-1
Before DAVIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Fernando Lemus-Gonzalez, federal prisoner # 72460-179, moves this
court for leave to proceed in forma pauperis (IFP) in his appeal from the district
court’s denial of his Federal Rule of Procedure 52(b) motion for collateral relief
from his conviction and sentence for eight counts of transporting an
undocumented alien for private financial gain by means of a motor vehicle and
causing the death of five aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii),
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40162 Document: 00514239685 Page: 2 Date Filed: 11/16/2017
No. 17-40162
(a)(1)(B)(iv), and 18 U.S.C. § 2. By moving this court for leave to proceed IFP,
Lemus-Gonzalez is challenging the district court’s determination that his
appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997). This court’s inquiry into good faith “is limited to whether the
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 and citation omitted).
Rule 52(b) does not provide a procedural mechanism for collaterally
challenging a prisoner’s conviction or sentence; rather, “recourse may be had
to [Rule 52(b)] only on appeal[.]” United States v. Frady, 456 U.S. 152, 163
(1982). Lemus-Gonzalez thus appeals the denial of a “meaningless,
unauthorized motion.” See United States v. Early, 27 F.3d 140, 142 (5th Cir.
1994). Accordingly, we DENY the IFP motion and DISMISS the appeal AS
FRIVOLOUS. See 5TH CIR. R. 42.2; Howard, 707 F.2d at 220.
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