Filed: May 13, 2015
Latest Update: Mar. 02, 2020
Summary: Case: 14-31062 Document: 00513041750 Page: 1 Date Filed: 05/13/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 14-31062 Summary Calendar United States Court of Appeals Fifth Circuit FILED May 13, 2015 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff-Appellee v. LOUIS BOYD, JR., Defendant-Appellant Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:09-CR-63-1 Before DENNIS, SOUTHWICK, and HAYNES, Circuit Judges. PER CURIAM: *
Summary: Case: 14-31062 Document: 00513041750 Page: 1 Date Filed: 05/13/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 14-31062 Summary Calendar United States Court of Appeals Fifth Circuit FILED May 13, 2015 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff-Appellee v. LOUIS BOYD, JR., Defendant-Appellant Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:09-CR-63-1 Before DENNIS, SOUTHWICK, and HAYNES, Circuit Judges. PER CURIAM: * L..
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Case: 14-31062 Document: 00513041750 Page: 1 Date Filed: 05/13/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-31062
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
May 13, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
LOUIS BOYD, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:09-CR-63-1
Before DENNIS, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM: *
Louis Boyd, Jr., federal prisoner # 30962-034, is serving a 147-month
prison term for multiple drug and firearms offenses. He has filed a motion for
leave to proceed in forma pauperis (IFP) on appeal from the district court’s
denial of his motion under Rule 36 of the Federal Rules of Criminal Procedure
to correct a clerical error in the judgment. The district court denied his motion
to proceed IFP on appeal, certifying that the appeal was not taken in good faith.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-31062
By moving in this court for IFP status, Boyd is challenging the district court’s
certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Boyd has identified no clerical mistake or oversight in the judgment
warranting relief under Rule 36. See United States v. Buendia-Rangel, 553
F.3d 378, 379 (5th Cir. 2008). He argues that the judgment does not specify
the amount of time that he is to spend in prison before beginning his supervised
release term. However, the judgment is explicit as to Boyd’s prison sentence,
explaining that he is to be in the custody of the Bureau of Prisons for 147
months. It is equally as specific with regard to the supervised release term,
stating that “[u]pon release from imprisonment, the defendant shall be on
supervised release for a term of six years.” Accordingly, the judgment makes
clear that Boyd is to serve 147 months in prison followed by six years of
supervised release.
Likewise, Boyd’s remaining arguments are meritless. He argues that
supervised release is a type of imprisonment and thus his supervised release
term should be deducted from his prison term, contends that supervised
release should be treated like parole, and asserts that his total sentence
improperly falls above the advisory guidelines imprisonment range. Where a
district court imposes a term of imprisonment, it “may include as part of the
sentence a requirement that the defendant be placed on a term of supervised
release after imprisonment.” 18 U.S.C. § 3583(a). Though the supervised
release term is part of the sentence, United States v. Higgins, 739 F.3d 733,
738 & n.11 (5th Cir.), cert. denied,
134 S. Ct. 2319 (2014), it is not part of the
prison term, see United States v. Butler,
895 F.2d 1016, 1018 (5th Cir. 1989)
(explaining that a term of supervised release “does not extend a party’s
imprisonment”). Moreover “supervised release is not the equivalent of special
parole.” United States v. Van Nymegen,
910 F.2d 164, 166 (5th Cir. 1990).
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No. 14-31062
By arguing that his prison sentence should be reduced by the six years he has
been ordered to serve on supervised release, Boyd is, in effect, attempting to
modify his sentence, which he cannot do through Rule 36. See United States v.
Spencer, 513 F.3d 490, 491 (5th Cir. 2008); United States v. Lopez,
26 F.3d 512,
515 n.5 (5th Cir. 1994).
This appeal is without arguable merit, and thus, Boyd’s motion to
proceed IFP is DENIED. See Howard, 707 F.2d at 219 20. Because the appeal
is frivolous, it is DISMISSED. See Baugh,
117 F.3d 197, 202 n.24; 5TH CIR.
R. 42.2.
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