Case: 21-50604 Document: 00516280338 Page: 1 Date Filed: 04/14/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 14, 2022
No. 21-50604
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Garry David Gallardo,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:21-CV-524
Before Stewart, Haynes, and Ho, Circuit Judges.
Per Curiam:*
Garry David Gallardo, federal inmate # 41571-080, is in custody
pursuant to his 1987 and 2006 child pornography convictions. He appeals
the denial of his 18 U.S.C. § 3582(c)(1)(A) motion for compassionate release
and also moves for a certificate of appealability (COA) to appeal the denial of
his related Federal Rule of Civil Procedure 59(e) motion, which the district
*
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opinion should not be published and is not precedent except under the limited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.
Case: 21-50604 Document: 00516280338 Page: 2 Date Filed: 04/14/2022
No. 21-50604
court construed as a successive 28 U.S.C. § 2255 motion and dismissed for
lack of jurisdiction. See § 2255(h). Gallardo also moves for leave to proceed
in forma pauperis (IFP) on appeal as well as for release pending appeal.
We deny the motion to proceed IFP because Gallardo’s appeal of the
denial of his § 3582(c)(1)(A) motion is frivolous. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997); Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). Gallardo addresses neither the bases upon which he sought
compassionate release in the district court—his age, chronic health
conditions, and risk of contracting COVID-19; the district court’s application
of § 3582(c)(1)(A); nor its assessment the 18 U.S.C. § 3553(a) factors.
See United States v. Reagan, 596 F.3d 251, 254 (5th Cir. 2010); Brinkmann
v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987);
§ 3582(c)(1)(A). Moreover, we have previously rejected, as frivolous,
Gallardo’s assertion that federal courts lack jurisdiction to prosecute
interstate child pornography offenses. See United States v. Gallardo, No. 94-
50125, 1995 WL 71025, 1 (5th Cir. Jan. 24, 1995) (citing Perez v. United States,
402 U.S. 146, 150-51 (1971)). Consequently, we dismiss Gallardo’s appeal as
frivolous. See Baugh, 117 F.3d at 202 & n.24.
To obtain a COA to appeal the denial of his Rule 59(e) motion,
Gallardo must make “a substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), by showing “at least, that jurists of reason
would find it debatable whether the [motion] states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling,” Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Houser v. Dretke, 395 F.3d 560, 561 (5th
Cir. 2004). He fails to make the requisite showing, and, accordingly, we deny
the motion for a COA.
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Case: 21-50604 Document: 00516280338 Page: 3 Date Filed: 04/14/2022
No. 21-50604
Lastly, in light of the foregoing, we deny the motion for release
pending appeal.
MOTION TO PROCEED IFP DENIED; APPEAL
DISMISSED AS FRIVOLOUS; MOTION FOR COA DENIED;
MOTION FOR RELEASE PENDING APPEAL DENIED.
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