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

                                                 FILED
                                                                          February 17, 2009
                                     No. 08-10499
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

OWEN DONOVAN POWELL

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 3:07-CR-56-ALL


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       In our original panel opinion, filed on January 27, 2009, we denied Owen
Donovan Powell’s motion for leave to proceed in forma pauperis (IFP) on appeal
and his motion for appointment of counsel. On reconsideration, the prior opinion
of the court is withdrawn and this opinion is substituted.
       Powell’s motion for the appointment of appellate counsel is GRANTED for
the limited purpose of assisting Powell in filing a motion for leave to proceed IFP
on appeal, under the Criminal Justice Act, 18 U.S.C. § 3006A, and in preparing

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-10499

a detailed statement of the issues to be raised on appeal so as to permit this
court to review the district court’s determination that Powell’s appeal is
frivolous. See Johnson v. United States, 352 U. S. 565, 566 (1957); United States
v. Boutwell, 896 F.2d. 884, 889-90 (5th Cir. 1990). Powell’s motion to proceed
IFP on appeal is DENIED WITHOUT PREJUDICE.
      The court directs that, once counsel has been appointed and has filed any
necessary transcripts with the court, see 28 U.S.C. § 3006A(a), (e)(2); 28 U.S.C.
§ 753(f), the clerk’s office direct the appointed attorney to file, within 40 days of
that time, a motion on Powell’s behalf to proceed IFP on appeal together with a
statement of the issues to be raised on appeal with a supporting brief. The court
may then proceed to review the district court’s determination that Powell’s
appeal is not taken in “good faith” and that Powell is thus not entitled to proceed
IFP on appeal. See Boutwell, 896 F.2d 899-90.




                                         2
