IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30369
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO BARRAZA-PEREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 95 CR 20025
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October 31, 1997
Before KING, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
Eduardo Barraza-Perez appeals his sentence for illegal
reentry into the United States, a violation of 8 U.S.C. § 1326.
He also argues that his counsel was ineffective for failing to
object to the calculation of his sentencing guideline. The
district court did not clearly err in not grouping Barraza’s drug
conviction with his conviction for illegal reentry after
deportation for purposes of calculating his guideline range of
imprisonment. See United States v. Santana-Castellano, 74 F.3d
*
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that this opinion should not be published and is not precedent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. 97-30369
-2-
593, 597 (5th Cir. 1996); United States v. Garcia, 962 F.2d 479,
480-81 (5th Cir. 1992). Nor did the court err in assessing a
total of six criminal history points for Barraza’s convictions
for drug and firearms charges (three points) and failure to
appear for sentencing on those charges (three points). See
United States v. Packer, 70 F.3d 357, 360 (5th Cir. 1995), cert.
denied, 117 S. Ct. 75 (1996).
Because Barraza’s sentencing arguments are without merit, he
has not shown that counsel rendered ineffective assistance. See
United States v. Ressler, 54 F.3d 257, 259-60 (5th Cir. 1993).
Barraza’s wife paid the full $105 appellate filing fee after
Barraza was ordered to do so in accordance with the Prison
Litigation Reform Act (PLRA). This payment was made after
counsel was appointed for Barraza under the Criminal Justice Act
(CJA). The PLRA is inapplicable because that statute applies
only to civil actions brought by prisoners. See 28 U.S.C.
§ 1915(a)(2). Furthermore, the appointment of appellate counsel
under the CJA obviates the requirement of the appellant
proceeding in forma pauperis. See 18 U.S.C. § 3006A(d)(7).
Although the error has not been raised by counsel and is not
plain, see United States v. Calverly, 37 F.3d 160, 162-63 (5th
Cir. 1994)(en banc), the filing fee should be refunded in the
interest of fairness. The district court is therefore ORDERED to
reimburse the payor of the appellate filing fee.
AFFIRMED.