UNITED STATES v. RAMIREZ (2018)

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 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. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (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, ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), and United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), cert. denied, –––– U.S. ––––, 138 S.Ct. 1453, 200 L.Ed.2d 726 (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.

FOOTNOTES

FOOTNOTE.  

PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.