Case: 21-30021 Document: 00516124367 Page: 1 Date Filed: 12/09/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 9, 2021
No. 21-30021 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Lance Singleton,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:14-CR-168-2
Before Stewart, Haynes, and Ho, Circuit Judges.
Per Curiam:*
Lance Singleton, federal prisoner # 33977-034, moves for leave to
proceed in forma pauperis (IFP) on appeal from the denial of his motion to
correct his sentence pursuant to Federal Rule of Criminal Procedure 35(a).
In that motion, Singleton argued that a two-level enhancement under
*
Pursuant to 5th Circuit 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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
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No. 21-30021
U.S.S.G. § 2D1.1(b)(1) had been erroneously applied at the time of
sentencing. The district court denied Singleton’s motion to proceed IFP on
appeal, certifying that the appeal was not taken in good faith. By moving for
IFP status in this court, Singleton is challenging the district court’s
certification. See Baugh v. Taylor, 117 F.3d 197, 199-202 (5th Cir. 1997). After
filing a pro se brief, Singleton retained counsel, who moves to amend
Singleton’s pro se brief. The motion to amend is GRANTED.
Our inquiry into whether Singleton’s appeal is taken in good faith “is
limited to whether the 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 and citations omitted). The record refutes
Singleton’s contention that the district court denied his IFP motion on
financial grounds.
Singleton’s Rule 35 motion was denied because it was untimely and
lacked merit. Singleton argues that, if his request for relief was not
appropriately brought under Rule 35(a), the district court should have
liberally construed his motion as seeking relief under some other authority.
However, he does not identify any other provision that would empower the
district court to grant the relief sought.
With respect to his sentence, Singleton makes an argument regarding
18 U.S.C. § 924(c)(3)(B)’s residual-clause definition of the term “crime of
violence.” One of Singleton’s convictions was for violating § 924(c)(1)(A),
which proscribes the possession of a firearm in furtherance of either a crime
of violence or a drug-trafficking crime. Here, Singleton’s § 924(c) conviction
was based on his possession of a firearm in furtherance of his possession with
the intent to distribute cocaine base, a drug-trafficking offense. Thus, aside
from not having been raised in the district court, this sentencing argument
has no legal merit and is factually irrelevant.
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No. 21-30021
Singleton also challenges the district court’s ruling that his Rule 35(a)
motion was untimely, arguing that it should be entertained despite being
untimely because failure to do so would result in a miscarriage of justice.
However, he cites no case from this court recognizing a miscarriage-of-justice
exception to the deadline for Rule 35(a) motions. In any event, Singleton fails
to identify a nonfrivolous argument regarding the denial of his Rule 35(a)
motion, much less a miscarriage of justice.
Singleton has failed to show that his appeal involves any nonfrivolous
issues. See Howard, 707 F.2d at 220. His motion to proceed IFP is
DENIED, and his appeal is DISMISSED as frivolous. See Baugh, 117 F.3d
at 202 & n.24; 5th Cir. R. 42.2.
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