Case: 11-50681 Document: 00511807526 Page: 1 Date Filed: 03/30/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 30, 2012
No. 11-50681
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARVIN WEBSTER, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:92-CR-26-4
Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
Marvin Webster, Jr., federal prisoner # 60145-079, moves for leave to
proceed in forma pauperis (IFP) in this appeal from the district court’s denial of
his Federal Rule of Criminal Procedure 36 motion and his motion for
reconsideration of the denial of his Rule 36 motion. Webster is serving a life
sentence for conspiracy to possess with intent to distribute more than 50 grams
of crack 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-50681
By moving to proceed IFP, Webster is challenging the district court’s
certification decision that his appeal was not taken in good faith because it is
frivolous. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). We review a
district court’s ruling on a Rule 36 motion and a motion for reconsideration
under the abuse of discretion standard. See United States v. Mueller, 168 F.3d
186, 188 (5th Cir. 1999); United States v. O’Keefe, 128 F.3d 885, 892 (5th Cir.
1997).
Webster argues that the district court erred in finding that it did not need
to amend the original Statement of Reasons for his sentence to reflect that his
offense level was 41. He also argues that, because the Statement of Reasons
stated that his criminal history category was I, not III, the district court erred
in sentencing him based upon a criminal history category of III. Finally, he
states that the district court erred in imposing written conditions in the written
judgment that were not orally pronounced at sentencing. He asks that the case
be remanded to the district court so it can sentence him based upon a criminal
history category of I and a base offense level of 41 and that he be resentenced so
he can contest the additional conditions of supervised released imposed by the
written judgment. He alternatively asks that those conditions be removed from
the written judgment.
Webster’s Rule 36 motion and motion for reconsideration did not seek to
correct an error that was the result of oversight or omission such that it may be
corrected pursuant to Rule 36. See FED. R. CRIM. P. 36; United States v. Slanina,
359 F.3d 356, 357 (5th Cir. 2004). Accordingly, the district court did not abuse
its discretion in denying his motions.
Because the appeal lacks any arguable merit, Webster’s IFP motion is
DENIED, see Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983), and his appeal
is DISMISSED as frivolous. See 5TH CIR. R. 42.2. Webster is WARNED that the
filing of frivolous pleadings in the future may subject him to sanctions, including
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Case: 11-50681 Document: 00511807526 Page: 3 Date Filed: 03/30/2012
No. 11-50681
dismissal, monetary sanctions, and restrictions on his ability to file pleadings in
this court and any court subject to this court’s jurisdiction.
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