USA v. Robert Adams, No. 12-50624 (5th Cir. 2013)
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Case: 12-50624 Document: 00512215804 Page: 1 Date Filed: 04/22/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 12-50624 Summary Calendar April 22, 2013 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ROBERT KEITH ADAMS, Defendant-Appellant Appeals from the United States District Court for the Western District of Texas USDC No. 5:97-CR-23-1 Before JOLLY, ELROD, and GRAVES, Circuit Judges. PER CURIAM:* Robert Keith Adams, federal prisoner # 78734-080 moves this court for leave to proceed in forma pauperis (IFP) in an appeal of the district court s dismissal on jurisdictional grounds of his motion to enforce plea agreement and correct clerical error in the judgment. He argues that the Government breached the plea agreement by allowing restitution in an amount greater than the amount to which Adams agreed in the plea agreement. Further, he asserts that * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50624 Document: 00512215804 Page: 2 Date Filed: 04/22/2013 No. 12-50624 the district court retains jurisdiction to enforce a plea agreement at any time; therefore, the court s dismissal for lack of jurisdiction was erroneous. A movant for IFP on appeal must show that he is a pauper and that the appeal is taken in good faith. Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). This court s inquiry into Adams s good faith is limited to whether the appeal involves legal points arguable on their merits (and therefore not frivolous). Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (citation omitted). To the extent that Adams sought modification of the restitution order, the district court lacked jurisdiction to address the issue. See United States v. Hatten, 167 F.3d 884, 887 n.5 (5th Cir. 1999); see United States v. Segler, 37 F.3d 1131, 1135 (5th Cir. 1994). Further, Federal Rule of Criminal Procedure 36 is the appropriate vehicle for changes that do not substantively alter the orally announced sentence but instead correct errors in the written judgment. United States v. Spencer, 513 F.3d 490, 491-92 (5th Cir. 2008). The amount of restitution announced at sentencing is consistent with the amount stated in the judgment of conviction and sentence. Adams has not established that he will raise a nonfrivolous appellate issue. See Carson, 689 F.2d at 586. Accordingly, we DENY the motion to proceed IFP on appeal, and we DISMISS Adams s appeal as frivolous. See 5TH CIR. R. 42.2. 2
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