     Case: 16-10178      Document: 00513922983         Page: 1    Date Filed: 03/22/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                      No. 16-10178                           FILED
                                                                        March 22, 2017

UNITED STATES OF AMERICA,                                               Lyle W. Cayce
                                                                             Clerk
                                                 Plaintiff-Appellee

v.

TONY ALVAREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:14-CV-77
                             USDC No. 5:12-CR-40-1


Before OWEN, ELROD, and COSTA, Circuit Judges.
PER CURIAM: *
       Tony Alvarez, federal prisoner # 44485-177, moves for a certificate of
appealability (COA) and to proceed in forma pauperis (IFP) to appeal the
district court’s denial of his Federal Rule of Civil Procedure 60(b) motion for
reconsideration of the judgment dismissing his 28 U.S.C. § 2255 motion
challenging his conviction for child pornography.                See Ochoa Canales v.
Quarterman, 507 F.3d 884, 888 (5th Cir. 2007).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10178     Document: 00513922983      Page: 2    Date Filed: 03/22/2017


                                  No. 16-10178

      The district court did not determine whether a COA should issue from
the denial of the Rule 60(b) motion. We lack jurisdiction over the present
appeal without such a ruling. See Sonnier v. Johnson, 161 F.3d 941, 945-46
(5th Cir. 1998); United States v. Youngblood, 116 F.3d 1113, 1115 (5th Cir.
1997). However, we decline to remand this case to the district court for a COA
ruling in light of the patent frivolity of the appeal. See United States v. Alvarez,
210 F.3d 309, 310 (5th Cir. 2000). The appeal is frivolous because the Rule
60(b) motion, which was not meaningfully directed to the district court’s
procedural ruling, was a successive § 2255 motion. See Gonzalez v. Crosby, 545
U.S. 524, 530-33 (2005); United States v. Hernandes, 708 F.3d 680, 681 (5th
Cir. 2013). Thus, the district court did not have jurisdiction to consider the
motion without authorization from this court, which was neither sought nor
given. See In re Sepulvado, 707 F.3d 550, 556 (5th Cir. 2013).
      The appeal is DISMISSED for lack of jurisdiction, and Alvarez’s motions
for a COA and for IFP are DENIED AS MOOT.




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