United States v. Botello

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50286
No. 96-50287
No. 96-50568
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RENE GARZA BOTELLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-92-CR-207
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October 29, 1996
Before GARWOOD, JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Rene Garza Botello, federal prisoner # 34404-080, appeals
the district court’s denial of his motion for reconsideration of
the denial of his motion for a new trial, his motion requesting
the district court to take judicial notice, and his motion for
subpoena duces tecum. Botello has filed motions for leave to
proceed in forma pauperis (IFP) on appeal in each of his three
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 96-50286
No. 96-50287
No. 96-50568
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appeals. We liberally construe Botello’s district court motions
as one motion for a new trial. See, e.g., United States v.
Lopez, 842 F.2d 755, 757 (5th Cir. 1988). Because the district
court granted Botello’s IFP motion in No. 96-50287 and because
his motions are liberally construed as one motion for new trial,
Botello’s IFP motions are DENIED as unnecessary.
Botello’s motions to consolidate his appeals are GRANTED.
His request for a stay is DENIED as unnecessary.
Botello argues that the district court abused its discretion
in denying his motion for a new trial based on newly discovered
evidence. We have reviewed the record and the district court’s
opinion and find no reversible error. United States v. Botello,
No. SA-92-CR-207 (W.D. Tex. October 30, 1995, March 29, 1996,
April 3, 1996, April 17, 1996).
Botello’s appeals are without arguable merit and are thus
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Because Botello’s appeals are frivolous, they are
DISMISSED. See 5th Cir. R. 42.2.
MOTION TO CONSOLIDATE APPEALS GRANTED; IFP MOTIONS DENIED AS
UNNECESSARY; STAY DENIED AS UNNECESSARY; APPEALS DISMISSED
AS FRIVOLOUS.