United States v. Joe Ramirez

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 16, 2018
• Docket: 18-10680
• Status: Unpublished

Opinion

Case: 18-10680 Document: 00514684613 Page: 1 Date Filed: 10/16/2018

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

No. 18-10680 FILED October 16, 2018 Lyle W. Cayce Clerk

UNITED STATES OF AMERICA,

Plaintiff−Appellee,

versus

JOE ARZOLA RAMIREZ,

Defendant−Appellant.

Appeal from the United States District Court for the Northern District of Texas No. 6:06-CR-25-1

Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges. PER CURIAM: *

For the second time, Joe Ramirez, federal prisoner #35876-177, appeals his 2007 sentence for possession with intent to distribute 50 grams or more of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 18-10680 Document: 00514684613 Page: 2 Date Filed: 10/16/2018

No. 18-10680

methamphetamine. See United States v. Ramirez, 274 F. App’x 407, 407 (5th Cir. 2008) (per curiam) (dismissing Ramirez’s first appeal per Anders v. Cali- fornia, 386 U.S. 738 (1967)). Ramirez has also filed a motion to proceed pro se. Although Ramirez’s instant notice of appeal is untimely, see FED. R. APP. P. 4(b)(1)(A), we pretermit the timeliness issue because we conclude that the appeal is frivolous, see United States v. Martinez, 496 F.3d 387, 388 (5th Cir. 2007) (per curiam); 5TH CIR. R. 42.2.

Because “[a] criminal defendant is not entitled to two appeals,” United States v. Rodriguez, 821 F.3d 632, 633 (5th Cir. 2016), Ramirez’s second appeal of his sentence “is not properly before this Court,” United States v. Arlt, 567 F.2d 1295, 1297 (5th Cir. 1978) (per curiam). Even construing Ramirez’s notice of appeal as a request for authorization to file a successive 28 U.S.C. § 2255 motion based on Mathis v. United States, 136 S. Ct. 2243 (2016), and United States v. Hinkle, 832 F.3d 569 (5th Cir. 2017), cert. denied, 138 S. Ct. 1453 (2018), it is wholly meritless because neither Mathis nor Hinkle provides a basis for granting successive authorization, see In re Lott, 838 F.3d 522, 522−23 (5th Cir. 2016) (per curiam); In re Sparks, 657 F.3d 258, 260 (5th Cir 2011) (per curiam).

Accordingly, the appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2. Ramirez’s motion to proceed pro se is DENIED as moot.