United States v. Garces

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-50894 USDC No. EP-95-CV-355

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GABRIEL ERNESTO GARCES Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas - - - - - - - - - - March 24, 1997 Before KING, JOLLY, and DENNIS, Circuit Judges.

PER CURIAM:*

Gabriel Garces (# 63220-080) has applied to this court for

leave to appeal in forma pauperis (IFP) from the district court’s

denial of his 28 U.S.C. § 2255 motion to vacate. Garces contends

that for several reasons, he should not have received a ten-year

mandatory minimum sentence pursuant to 21 U.S.C. §§ 952(a) and

960.

IT IS ORDERED that leave to appeal IFP is DENIED, because

Garces’ appeal lacks arguable merit and is therefore frivolous.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-50894 -2-

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

Because the appeal is frivolous, IT IS FURTHER ORDERED that the

appeal is DISMISSED. See 5th Cir. R. 42.2.

If this court were to hold that a certificate of

appealability (COA) is required in a case such as this, COA would

be denied. See 28 U.S.C. § 2253(c).

IFP DENIED; APPEAL DISMISSED.