United States v. Anderson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 11, 2007
No. 07-10430
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MERVIN GLEN ANDERSON
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:90-CR-165-ALL
Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Mervin Glen Anderson, federal prisoner # 12497-076, appeals the district
court’s denial of his request for a writ of audita querela challenging his sentence
for kidnapping and violating the Mann Act. He argues that he is entitled to
resentencing under Amendment 478 to the Sentencing Guidelines, which
modified the background commentary to U.S.S.G. § 2A4.1, a Guideline pursuant
to which he received a four-level enhancement to his base offense level. He
asserts that audita querela relief is available because he has no other means 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should not be published and is not precedent except under the limited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.
No. 07-10430
raising his claim and that Amendment 478 should be applied retroactively
because it was a clarifying amendment.
Even if audita querela relief were available to him, Anderson would not
be entitled to it because Amendment 478 is not listed in U.S.S.G. § 1B1.10(c),
and clarifying amendments to the Guidelines not listed in that subsection are
not retroactively applicable except upon direct review. See United States v.
Drath, 89 F.3d 216, 217-18 (5th Cir. 1996). Anderson’s appeal is without
arguable merit. Accordingly, it is dismissed as frivolous. See 5TH CIR. R. 42.2;
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
We have previously imposed a sanction against Anderson for filing
frivolous challenges to his conviction and sentence and warned him that filing
further frivolous challenges would result in the imposition of further sanctions.
We now order Anderson to pay $200 as a sanction to the clerk of this court.
Anderson is barred from filing in this court or in any court subject to this court’s
jurisdiction any challenge to his conviction or sentence until the total amount of
the sanction imposed on him is paid in full. Moreover, the clerk of this court and
the clerks of the district courts are directed to refuse to file any challenge by
Anderson to his conviction or sentence unless Anderson submits proof of
satisfaction of this sanction. If Anderson attempts to file any such notices of
appeal or original proceedings in this court without such proof, the clerk shall
docket them for administrative purposes only. Any such submissions which do
not show proof that the sanction has been paid will neither be addressed nor
acknowledged. Anderson is also warned that filing any future frivolous or
repetitive challenges to his conviction or sentence in this court or any court
subject to this court’s jurisdiction will subject him to additional sanctions, as will
the failure to withdraw any such pending challenges that are frivolous.
APPEAL DISMISSED; SANCTION IMPOSED; SANCTION WARNING
ISSUED.
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