     Case: 19-40660      Document: 00515238975         Page: 1    Date Filed: 12/17/2019




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

                                    No. 19-40660
                                                                             Fifth Circuit

                                                                           FILED
                                  Summary Calendar                 December 17, 2019
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk


                                                 Plaintiff-Appellee

v.

JUSTIN RYAN SERNA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-652-1


Before HAYNES, GRAVES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Justin Ryan Serna, federal prisoner # 92519-379, moves for leave to
proceed in forma pauperis (IFP) in this appeal from the district court’s denial
of his Federal Rule of Criminal Procedure 36 motion. Serna pleaded guilty to
sexual exploitation of a child, and he is currently serving a 180-month
sentence, to be followed by a 10-year term of supervised release.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-40660

      By moving to proceed IFP, Serna is challenging the district court’s
certification decision that his appeal was not taken in good faith because it is
frivolous. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). In cases where
there are no factual disputes, we review a district court’s denial of a Rule 36
motion de novo. United States v. Mackay, 757 F.3d 195, 197 (5th Cir. 2014).
In some unpublished cases, we have reviewed the denial of a Rule 36 motion
only for an abuse of discretion. See United States v. Webster, 466 F. App’x. 319,
320 (5th Cir. 2012). We need not decide which standard applies here, though,
because Serna is not entitled to relief under either standard. See United States
v. Crawley, 463 F. App’x. 418, 420 n. 1 (5th Cir. 2012).
      Serna argues that he is entitled to correction of the judgment because
although the district court orally pronounced at sentencing that he must
participate in mental health or sex offender treatment as a condition of his
supervised release, the court did not orally specify that he could be required to
undergo invasive treatment procedures or that he must pay the costs of
treatment. In addition, he acknowledges that the court orally announced that
he was barred from subscribing to online computer services without the
consent of his probation officer during his supervised release term, but he
maintains that the written judgment expands this condition by barring him
from possessing any devices containing Internet-capable software without
authorization from the probation officer. Serna contends that these expansions
of the supervised release terms in the written judgment constitute conflicts
with the oral pronouncement of sentence and that he is entitled to reformation
of the judgment under Rule 36.
      The Rule 36 motion filed by Serna did not seek to correct an error that
was the result of oversight or omission such that it may be corrected pursuant
to Rule 36. See FED. R. CRIM. P. 36; United States v. Slanina, 359 F.3d 356,



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                                No. 19-40660

357-58 (5th Cir. 2004). Accordingly, the district court did not err in denying
his request for relief. Because the appeal lacks any arguable merit, Serna’s
IFP motion is DENIED, see Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983),
and his appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2.




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