IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 2, 2009
No. 08-50982
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
TAYRELL RICHARD LARRY
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:99-CR-90-ALL
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Tayrell Richard Larry, federal prisoner # 03016-180, seeks leave to proceed
in forma pauperis (IFP) to appeal the dismissal of his motion filed pursuant to
28 U.S.C. § 2241, wherein he sought to have the district court apply U.S.S.G.
§ 5G1.3(b) and adjust his sentence for distribution of crack cocaine. The district
court denied IFP and certified that Larry’s appeal was not taken in good faith.
By moving for leave to proceed IFP, Larry is challenging the district court’s
certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); F ED. R.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-50982
A PP. P. 24(a)(5). However, Larry has not demonstrated any nonfrivolous ground
for appeal.
Larry argues that the district court should have credited his time in state
custody to his federal sentence pursuant to § 5G1.3(b). Because Larry’s petition
challenges errors that occurred at sentencing and does not satisfy the
requirements of the savings clause of 28 U.S.C. § 2255, it should not have been
brought as a § 2241 petition. See Reyes-Requena v. United States, 243 F.3d 893,
904 (5th Cir. 2001). Moreover, Larry’s challenge to the application of the
Guidelines is not cognizable in a § 2255 motion. See United States v. Cervantes,
132 F.3d 1106, 1109 (5th Cir. 1998). Larry’s petition was an unauthorized
motion which the district court was without jurisdiction to entertain. See United
States v. Early, 27 F.3d 140, 142 (5th Cir. 1994). Larry’s appeal is from the
denial of an unauthorized motion.
Larry’s appeal does not involve legal points arguable on their merits, and
it is therefore frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Accordingly, the IFP motion is DENIED, and the appeal is DISMISSED as
frivolous. See Baugh, 117 F.3d at 202; 5 TH C IR. R. 42.2
2