IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50125
Conference Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELMER DEAL ALLISON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-89-CR-014
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June 30, 1995
Before JONES, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Elmer Dean Allison has filed a motion with this court to
proceed in forma pauperis (IFP). "To proceed on appeal in forma
pauperis, a litigant must be economically eligible, and his
appeal must not be frivolous." Jackson v. Dallas Police Dep't,
811 F.2d 260, 261 (5th Cir. 1986) (citations omitted).
Allison appeals from the district court's denial of his
"Motion Under Title 28 U.S.C. § 3572-73" to correct an "error" in
his sentencing. In his appellant's brief, Allison makes clear
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-50125
-2-
that he is relying upon "18 U.S.C. §§ 3572-73." Neither section,
however, provides jurisdiction to the district court to consider
such a motion.
Section 3572 provides, in relevant part, that a sentence to
pay a fine is a final judgment for all purposes, unless it can be
"(1) modified or remitted under section 3573; (2) corrected under
rule 35 of the Federal Rules of Criminal Procedure and section
3742; or (3) appealed and modified under section 3742." 18
U.S.C. § 3572(c) (emphasis added). None of these subsections
apply to Allison. A guidelines sentence may be modified under 18
U.S.C. § 3573 or Federal Rule of Criminal Procedure 35 only upon
petition by the Government. 18 U.S.C. § 3573; Fed. R. Crim.
P. 35(b). The provisions for modification of a sentence under 18
U.S.C. § 3742 are available to a defendant only upon direct
appeal of a sentence or conviction; this court may not review his
sentence on this non-direct appeal. See Williams v. United
States, 112 S.Ct. 1112, 1118-21 (1992); United States v. Early,
27 F.3d 140, 142 (5th Cir.), cert. denied, 115 S. Ct. 600 (1994).
Because the district court had no jurisdiction to entertain
Allison's motion under either 18 U.S.C. § 3572 or § 3573, its
denial was proper.
Allison's appeal does not raise a non-frivolous legal issue.
Therefore, his motion to proceed IFP is DENIED, and his appeal is
DISMISSED as frivolous. See 5th Cir. R. 42.2.