United States v. Juan Gutierrez

Case: 18-40454 Document: 00514867309 Page: 1 Date Filed: 03/11/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-40454 March 11, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
versus
JUAN GUTIERREZ,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 2:10-CR-63-2
Before SMITH, HIGGINSON, and DUNCAN, Circuit Court Judges.
PER CURIAM: *
Juan Gutierrez, federal prisoner # 24776-179, moves for leave to proceed
in forma pauperis (IFP) on appeal from the denial of his petition for a writ of
audita querela, in which he sought to challenge his sentence for conspiracy to
possess with intent to distribute marijuana. Gutierrez contends that his
sentence is no longer valid in light of Mathis v. United States, 136 S. Ct. 2243
(2016), because his prior Florida drug offense no longer qualifies as a controlled
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40454 Document: 00514867309 Page: 2 Date Filed: 03/11/2019
No. 18-40454
substance offense for purposes of the career offender guideline enhancement
under U.S.S.G. §§ 4B1.1 and 4B1.2. He argues that he should have been
allowed to pursue a writ of audita querela because his Mathis claim was not
cognizable under any other avenue of federal postconviction relief.
By moving for leave to proceed IFP on appeal, Gutierrez is challenging
the district court’s certification that his appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into his 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).
Irrespective of whether a writ of audita querela is available to Gutierrez,
his challenge to his sentence does not present a nonfrivolous issue for appeal.
See United States v. Olson, 849 F.3d 230, 232 (5th Cir. 2017); United States v.
Ford, 509 F.3d 714, 716 (5th Cir. 2007), abrogated on other grounds by United
States v. Tanksley, 848 F.3d 347, 350-52 (5th Cir.), supplemented by 854 F.3d
284 (5th Cir. 2017). Gutierrez’s appeal is without arguable merit and is
frivolous. See Baugh, 117 F.3d at 202; Howard, 707 F.2d at 220.
Accordingly, his motion for leave to proceed IFP is DENIED, and his
appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2; Baugh, 117 F.3d at
202 & n.24.
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