Case: 15-10349 Document: 00513315927 Page: 1 Date Filed: 12/21/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-10349 FILED
Summary Calendar December 21, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARTIN CARDONA GUTIERREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:14-CR-20
Before DAVIS, JONES, and HAYNES, Circuit Judges.
PER CURIAM: *
Martin Cardona Gutierrez, federal prisoner # 79308-180, moves for leave
to proceed in forma pauperis (IFP) on appeal from the denial of his “Motion for
Judgment Nunc Pro Tunc” alleging that he was sentenced incorrectly because
he did not receive a three-level decrease for acceptance of responsibility in
accordance with his plea agreement after his guilty plea conviction for
conspiracy to distribute and possess with intent to distribute cocaine.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10349 Document: 00513315927 Page: 2 Date Filed: 12/21/2015
No. 15-10349
Gutierrez received the three-level reduction for acceptance of
responsibility, and his motion and appeal are patently frivolous. This appeal
is “from the denial of a meaningless, unauthorized motion.” See United States
v. Early, 27 F.3d 140, 142 (5th Cir. 1994). Gutierrez has failed to show that
his 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 omitted). Accordingly, the motion for leave to proceed IFP on
appeal is DENIED and the appeal is DISMISSED as frivolous. See Baugh v.
Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997).
2