Case: 10-50153 Document: 00511269902 Page: 1 Date Filed: 10/21/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 21, 2010
No. 10-50153
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DANIEL DOMINGUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:99-CR-371-1
Before DENNIS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
Daniel Dominguez seeks leave to proceed in forma pauperis (IFP) on
appeal. To proceed IFP on appeal, Dominguez must show that he is a pauper
and that he will raise a nonfrivolous issue on appeal. See Jackson v. Dallas
Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986).
Dominguez filed in the district court two motions, asserting that he had
satisfied his criminal judgment that was entered on November 9, 2000.
Dominguez’s motions were unauthorized motions which the district court was
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50153 Document: 00511269902 Page: 2 Date Filed: 10/21/2010
No. 10-50153
without jurisdiction to entertain. See United States v. Early, 27 F.3d 140, 142
(5th Cir. 1994). The district court could not construe the motions as F ED.
R. C RIM. P. 35 motions because they were neither made by the Government nor
made within seven days of sentencing. See F ED. R. C RIM P. 35; Early, 27 F.3d at
141. The motions were also not authorized under 18 U.S.C. § 3582(c)(2) because
they were not based upon an amendment to the Sentencing Guidelines. See
§ 3582(c)(2); Early, 27 F.3d at 142. In addition, the district court could not
construe the motions under 18 U.S.C. § 3742, as relief thereunder is reserved
only for direct appeals. See § 3742. Finally, the district court did not have
jurisdiction to construe the motions as 28 U.S.C. § 2255 motions because
Dominguez had previously filed a § 2255 motion and had not received permission
from this court to file a successive § 2255 motion. See Hooker v. Sivley, 187 F.3d
680, 681-82 (5th Cir. 1999).
Dominguez’s appeal is without arguable merit and is therefore dismissed
as frivolous. Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5th Cir.
R. 42.2.
IFP DENIED; APPEAL DISMISSED.
2