USA v. Daniel Dominguez, No. 10-50153 (5th Cir. 2010)
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Case: 10-50153 Document: 00511269902 Page: 1 Date Filed: 10/21/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED October 21, 2010 No. 10-50153 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. DANIEL DOMINGUEZ, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 5:99-CR-371-1 Before DENNIS, CLEMENT, and ELROD, Circuit Judges. PER CURIAM:* Daniel Dominguez seeks leave to proceed in forma pauperis (IFP) on appeal. To proceed IFP on appeal, Dominguez must show that he is a pauper and that he will raise a nonfrivolous issue on appeal. See Jackson v. Dallas Police Dep t, 811 F.2d 260, 261 (5th Cir. 1986). Dominguez filed in the district court two motions, asserting that he had satisfied his criminal judgment that was entered on November 9, 2000. Dominguez s motions were unauthorized motions which the district court was * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 10-50153 Document: 00511269902 Page: 2 No. 10-50153 Date Filed: 10/21/2010 without jurisdiction to entertain. See United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994). The district court could not construe the motions as F ED. R. C RIM. P. 35 motions because they were neither made by the Government nor made within seven days of sentencing. See F ED. R. C RIM P. 35; Early, 27 F.3d at 141. The motions were also not authorized under 18 U.S.C. § 3582(c)(2) because they were not based upon an amendment to the Sentencing Guidelines. See § 3582(c)(2); Early, 27 F.3d at 142. In addition, the district court could not construe the motions under 18 U.S.C. § 3742, as relief thereunder is reserved only for direct appeals. See § 3742. Finally, the district court did not have jurisdiction to construe the motions as 28 U.S.C. § 2255 motions because Dominguez had previously filed a § 2255 motion and had not received permission from this court to file a successive § 2255 motion. See Hooker v. Sivley, 187 F.3d 680, 681-82 (5th Cir. 1999). Dominguez s appeal is without arguable merit and is therefore dismissed as frivolous. Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5th Cir. R. 42.2. IFP DENIED; APPEAL DISMISSED. 2
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