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

                                                 FILED
                                                                          October 22, 2009
                                     No. 09-40517
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MICHAEL JOSEPH DERROW,

                                                   Defendant-Appellant


                   Appeals from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 9:98-CR-6-9


Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
       Michael Joseph Derrow, federal prisoner # 03199-286, seeks leave to
proceed in forma pauperis (IFP) on appeal from the district court’s denial of his
motion to correct illegal sentence pursuant to Apprendi v. New Jersey, 530 U.S.
466 (2000).     Derrow also moves for the appointment of counsel.                    Derrow
previously filed a 28 U.S.C. § 2255 motion, challenging his conviction and
sentence for conspiracy to possess with the intent to distribute crack cocaine and



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 09-40517

possession with the intent to distribute crack cocaine. His § 2255 motion was
denied, and his motion for a certificate of appealability was denied by this court.
      In order to obtain leave to proceed IFP, Derrow must show that he is a
pauper, and he must raise a nonfrivolous issue. See Jackson v. Dallas Police
Dep’t, 811 F.2d 260, 261 (5th Cir. 1986). Derrow argues that his sentence is
unconstitutional under Apprendi, his counsel was ineffective in failing to raise
the issue on appeal, and the district court erroneously denied his motion.
Derrow’s motion filed in the district court was an unauthorized motion which the
district court was without jurisdiction to entertain. See United States v. Early,
27 F.3d 140, 142 (5th Cir. 1994). Derrow’s appeal is without arguable merit and
is thus frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
      Accordingly, Derrow’s request for leave to proceed IFP is DENIED. His
motion for appointment of counsel is also DENIED, and the appeal is
DISMISSED. See 5 TH C IR. R. 42.2.




                                        2
