     Case: 17-11059      Document: 00514459658         Page: 1    Date Filed: 05/04/2018




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

                                      No. 17-11059                            FILED
                                                                           May 4, 2018
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk

                                                 Plaintiff-Appellee

v.

CHRISTOPHER THOMPSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:03-CR-382-1


Before SMITH, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM: *
       In 2004, Christopher Thompson, federal prisoner # 31221-177, was
convicted by a jury of possession of a firearm as a felon, possession of a firearm
within a school zone, possession with intent to distribute 50 or more grams of
cocaine base, and possession with intent to distribute 50 or more grams of
cocaine base within a school zone. The district court imposed concurrent terms
of imprisonment of 120 months, 60 months, 324 months, and 324 months.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-11059    Document: 00514459658     Page: 2    Date Filed: 05/04/2018


                                 No. 17-11059

Thompson appealed, arguing that the evidence was insufficient to support his
convictions, and we affirmed his judgment of conviction.
      More than a decade later, Thompson filed another notice of appeal,
arguing that this court should consider a belated direct appeal because his
appellate counsel did not challenge the Sentencing Guidelines’ career offender
enhancement, in light of Mathis v. United States, 136 S. Ct. 2243 (2016), and
other post-Mathis cases. Thompson sought the district court’s leave to appeal
in forma pauperis (IFP), and the district court denied his motion, certifying
that his appeal was not taken in good faith.
      Thompson has filed motions in this court for appointment of counsel and
for leave to appeal IFP.    By moving for leave to proceed IFP on appeal,
Thompson is challenging the district court’s certification that his appeal is not
taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 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,
707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation
omitted).
      Like all criminal defendants, Thompson “is not entitled to two appeals.”
United States v. Rodriguez, 821 F.3d 632, 633 (5th Cir. 2016). As appellate
counsel filed a direct appeal on Thompson’s behalf and we decided the merits
of the issue raised in that appeal, Thompson is not a candidate for an out-of-
time appeal. See id. at 633 n.2; United States v. Tapp, 491 F.3d 263, 265-66
(5th Cir. 2007).
      Thompson has failed to show an error in the district court’s certification
decision and has not established that he will raise a nonfrivolous issue on
appeal. See Baugh, 117 F.3d at 202; Howard, 707 F.2d at 220. Accordingly,
his motions for leave to proceed IFP and for appointment of counsel are



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                                No. 17-11059

DENIED, and his appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at
202 & n.24; 5TH CIR. R. 42.2.




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