                     REVISED SEPTEMBER 16, 2010

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

                                     No. 09-11126                            FILED
                                   Summary Calendar                    September 13, 2010

                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARK LINNEAR HAYS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:95-CR-141-2


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Mark Linnear Hays, federal prisoner # 46431-019, seeks leave to proceed
in forma pauperis (IFP) on appeal from the district court’s denial of his 18 U.S.C.
§ 3559(c)(7) motion for resentencing. In 1996, Hays was convicted of conspiracy
to obstruct commerce by robbery (count 1), obstruction of commerce by robbery
(count 2), using and carrying a firearm during and in relation to a crime of


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 09-11126

violence (count 3), and possession of a firearm by a felon (count 5), and was
sentenced to two consecutive terms of life imprisonment on counts 2 and 3,
pursuant to § 3559(c), the federal “three strikes law,” and to additional terms of
imprisonment on the remaining counts. By moving to proceed IFP, Hays is
challenging the district court’s certification decision that his appeal was not
taken in good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997).
      Pursuant to § 3559(c)(7), a defendant shall be resentenced if a prior
conviction that was a basis for sentencing under § 3559 “is found, pursuant to
any appropriate State or Federal procedure, to be unconstitutional or is vitiated
on the explicit basis of innocence, or if the convicted person is pardoned on the
explicit basis of innocence.” § 3559(c)(7). Although Hays asserts that two of his
prior convictions were dismissed, he does not argue that those convictions were
found to be unconstitutional or were vitiated on the explicit basis of innocence
or that he was pardoned on the explicit basis of innocence. His failure to
challenge to the magistrate judge’s determination, adopted by the district court,
that he did not qualify for resentencing under § 3559(c)(7) is the same as if he
had not appealed the judgment. Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Hays states in his IFP motion that he will raise the following issues on
appeal: (1) the use of his prior pending charges to enhance his sentence violated
§ 3559(c) and Congressional intent; (2) those pending charges have now been
dismissed, barring their use for § 3559(c) sentencing purposes; (3) the district
court erroneously sentenced him pursuant to a preponderance-of-the-evidence
standard; (4) the Government’s enhancement notice erroneously listed one prior
burglary conviction as two prior convictions, neither of which should have been
considered as “serious violent felonies”; and (5) the denial of his constitutional
right to counsel on direct appeal should be considered a total miscarriage of
justice in this case. He raises only three issues in his appellate brief: (1) the

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sentencing court abused its discretion in applying § 3559 based on charges that
were pending and now have been dismissed; (2) the United States Attorney was
vindictive in seeking life imprisonment under the three-strikes law; and (3) plain
error was overlooked on direct appeal, where he was denied his constitutional
right to counsel, causing a miscarriage of justice.
      None of these alleged errors are grounds for resentencing under
§ 3559(c)(7), and Hays does not argue that they are. Hays has failed to show
that he will raise a nonfrivolous issue on appeal. See Howard v. King, 707 F.2d
215, 220 (5th Cir. 1983). Accordingly, his motion for IFP is DENIED. Because
the appeal is frivolous, it is DISMISSED. See 5TH CIR. R. 42.2.




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