Case: 18-40454      Document: 00514867309         Page: 1    Date Filed: 03/11/2019




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

                                                                               FILED
                                    No. 18-40454                          March 11, 2019
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

versus

JUAN GUTIERREZ,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 2:10-CR-63-2


Before SMITH, HIGGINSON, and DUNCAN, Circuit Court Judges.
PER CURIAM: *
       Juan Gutierrez, federal prisoner # 24776-179, moves for leave to proceed
in forma pauperis (IFP) on appeal from the denial of his petition for a writ of
audita querela, in which he sought to challenge his sentence for conspiracy to
possess with intent to distribute marijuana.             Gutierrez contends that his
sentence is no longer valid in light of Mathis v. United States, 

(2016), because his prior Florida drug offense no longer qualifies as a controlled


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40454     Document: 00514867309     Page: 2   Date Filed: 03/11/2019


                                  No. 18-40454

substance offense for purposes of the career offender guideline enhancement
under U.S.S.G. §§ 4B1.1 and 4B1.2. He argues that he should have been
allowed to pursue a writ of audita querela because his Mathis claim was not
cognizable under any other avenue of federal postconviction relief.
      By moving for leave to proceed IFP on appeal, Gutierrez is challenging
the district court’s certification that his appeal is not taken in good faith. See
Baugh v. Taylor, 

, 202 (5th Cir. 1997). Our inquiry into his good
faith “is limited to whether the appeal involves legal points arguable on their
merits (and therefore not frivolous).” Howard v. King, 

, 220 (5th
Cir. 1983) (internal quotation marks and citation omitted).
      Irrespective of whether a writ of audita querela is available to Gutierrez,
his challenge to his sentence does not present a nonfrivolous issue for appeal.
See United States v. Olson, 

, 232 (5th Cir. 2017); United States v.
Ford, 

, 716 (5th Cir. 2007), abrogated on other grounds by United
States v. Tanksley, 

, 350-52 (5th Cir.), supplemented by 

(5th Cir. 2017).    Gutierrez’s appeal is without arguable merit and is
frivolous. See 

; 

.
      Accordingly, his motion for leave to proceed IFP is DENIED, and his
appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2; 

& n.24.




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