United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM AND RECOMMENDATION
B. LIBBY UNITED STATES MAGISTRATE JUDGE.
Louis Arenas (“Defendant”), a federal prisoner,
has filed a pro se application to proceed in
forma pauperis (“IFP”) on appeal (D.E. 79)
as to the Court's June 7, 2017 order (D.E. 74) denying
his motion to correct clerical error, for appointment of
counsel and for summary judgment. Defendant's IFP motion
has been referred to the undersigned magistrate judge
pursuant to 28 U.S.C. § 636. For the reasons set forth
in more detail below, the undersigned recommends the Court
DENY Defendant's IFP motion (D.E. 79)
and certify that this appeal is not taken in good
September 29, 2012, Defendant was arrested at the United
States Border Patrol Checkpoint near Sarita, Texas after
Border Patrol Agents found cocaine, methamphetamine and
marihuana concealed in the sleeper compartment of the
tractor-trailer he was driving. Defendant originally retained
counsel, however, another lawyer was appointed after the
retained counsel was allowed to withdraw. (D.E. 13, 18, 20)
On April 4, 2013 Defendant pleaded guilty before United
States District Judge Nelva Gonzales Ramos to each of the
counts in the three-count superseding indictment (D.E.
On July 23, 2013, the Court sentenced Defendant to 144 months
custody in the U.S. Bureau of Prisons and five years of
supervised release on each count to be served concurrently
and a $100 special assessment for each count of conviction.
through counsel, appealed his conviction and sentence. (D.E.
41). On May 13, 2014, Defendant's appeal was dismissed as
frivolous pursuant to Anders v. California, 386 U.S.
738 (1967). (D.E. 54); United States v. Louis
Arenas, No. 13-40820 (5th Cir. May 13, 2014).
April 10, 2015, appearing pro se, Defendant filed a
motion to vacate his sentence pursuant to 28 U.S.C. §
2255. (D.E. 56). The District Judge, by Memorandum Opinion
and Order dated September 10, 2015, denied Defendant's
2255 motion and further denied him a certificate of
appealability. (D.E. 64). The Court entered final judgment on
September 10, 2015. (D.E. 65). Defendant appealed the denial
of his 2255 motion. (D.E. 66). Defendant moved to proceed
in forma pauperis regarding the appeal of the denial
of his 2255 motion. (D.E. 68, 69). On January 4, 2016, the
District Court denied Defendant's motion to proceed
in forma pauperis certifying pursuant to 28 U.S.C.
§ 1915(a)(3) that the appeal was not taken in good faith
and further finding the appeal frivolous. (D.E. 71).
1, 2017, the Fifth Circuit denied Defendant's motion to
supplement his motions for a certificate of appealability, to
proceed in forma pauperis on appeal, for an
evidentiary hearing and to appoint counsel. (D.E. 72);
United States v. Louis Arenas, No. 15-41546 (5th
Cir. May 1, 2017).
7, 2017, the District Court denied Defendant's Motion to
Correct Clerical Error filed pursuant to Fed. R. Crim. P. 36.
(D.E. 74). On June 23, 2017, the Clerk of Court received
Defendant's notice of appeal of the District Court's
June 7, 2017 order. (D.E. 75). Defendant's appeal was
dismissed by the Fifth Circuit on August 7, 2017 for want of
prosecution because Defendant failed to pay the appellate
filing fee. (D.E. 78). On August 30, 2017, Defendant filed an
application to proceed in forma pauperis on appeal.
On September 1, 2017, the Fifth Circuit granted
Defendant's request to re-instate the appeal.
Defendant's application to proceed in forma
pauperis on appeal (D.E. 81) regarding the order denying
his motion to correct clerical error, for appointment of
counsel and for summary judgment remains pending.
28 U.S.C. § 1915(a)(3) provides that “[a]n appeal
may not be taken in forma pauperis if the trial
court certifies in writing that it is not taken in good
faith.” Id. An appeal is taken in good faith
under that section if a litigant seeks appellate review of
any issue that is not frivolous. See Coppedge v. United
States, 369 U.S. 438, 445 (1962).
in addition to demonstrating that his financial condition
qualifies him to proceed under the IFP statute, “[a]
movant who seeks authorization to proceed IFP on appeal
[also] must demonstrate that ... his appeal involves
nonfrivolous issues.” Amir- Sharif v.
Dallas Cnty. Tex., 269 Fed.Appx. 525, 526 (5th Cir.
2008) (per curiam) (citing Carson v. Polley, 689
F.2d 562, 586 (5th Cir. 1982)). In the Fifth Circuit, this
requirement in civil cases is the same in criminal cases -
“[a] movant seeking leave to proceed IFP on appeal in a
civil case must show that he is a pauper and that the appeal
raises nonfrivolous issues. A movant seeking leave to proceed
IFP in a criminal case must make the same showing.”
United States v. Torres, 450 Fed.Appx. 361, 362 (5th
Cir. 2011) (per curiam). Similarly, under Fed. R. App. P.
24(a)(3)(A), Defendant is ineligible for in forma
pauperis status if the Court certifies that the appeal
is not taken in “good faith.” If the district
court finds no “legal points arguable on the merits,
” then an appeal is not taken in “good
faith.” Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983), reh'g denied, 719 F.2d 787 (5th Cir.
1983); see also Wai Leung Chu v. United States, 353
Fed.Appx. 952, 953 (5th Cir. 2009) (per curiam); Groden
v. Kizzia, 354 Fed.Appx. 36, 36 (5th Cir. 2009) (per
curiam); Walton v. Valdez, 340 Fed.Appx. 954, 955
(5th Cir. 2009) (per curiam).
seeks to appeal the Court's June 7, 2017 order (D.E. 74)
denying his motion to correct clerical error, for appointment
of counsel and for summary judgment. Defendant maintains
paragraphs 7 and 15 of the presentence investigation report
(D.E. 34) incorrectly held him accountable for
“methamphetamine (ICE)” instead of
“methamphetamine.” (D.E. 79, p. 2). For purposes
of sentencing, there can be a significant difference between
a mixture or substance containing a detectable amount of
methamphetamine and methamphetamine (actual) and
methamphetamine (ice). See U.S.S.G. § 2D1.1,
Notes (A) - (C). The difference concerns the purity of the
controlled substance. A higher percentage of methamphetamine
in the substance corresponds to a higher base offense level,
and therefore, a higher guideline range of months of
imprisonment. Defendant argues he should have been held
accountable for a methamphetamine mixture and not
of the Federal Rules of Criminal Procedure provides that a
District Court “may at any time correct a clerical
error in a judgment, order, or other part of the record, or
correct an error in the record arising from oversight or
omission.” The rule is limited to mistakes resulting
from inadvertence. See United States v. Steen, 55
F.3d 1022, 1025 (5th Cir.), cert. denied, 116 S.Ct.
577 (1995) (clerical error under Rule 36 is limited to
“mindless and mechanistic mistakes” and
“minor shifting of facts”). Although a
presentence investigation report is considered part of the
record that may be corrected, United States v.
Mackay, 757 F.3d 195, 200 (5th Cir. 2014), relief under
Rule 36 is appropriate only when “the court intended
one thing but by merely clerical mistake or oversight did
another.” United States v. Buendia-Rangel, 553
F.3d 378, 379 (5th Cir. 2008) (per curiam) (quoting
United States v. Steen, 55 F.3d 1022, 1025-26 n.3
(5th Cir. 1995)). Rule 36 does not create a right to
“perpetual[ly] ... apply different legal rules or
different factual analyses to a case.” Mackay,
757 F.3d at 200.
denying Defendant's motion to correct under Fed. R. Crim.
P. 36, the District Court found “Defendant has
presented no evidence that the PSR's finding that he
possessed “ICE” was a clerical error. Moreover,
he did not raise this issue at sentencing, on appeal, or in
his § 2255 motion before this Court.” (D.E. 74, p.
3). The District Court considered the motion, reviewed the
presentence investigation report, and determined there ...