     Case: 11-51282     Document: 00511905500         Page: 1     Date Filed: 06/29/2012




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

                                                                            FILED
                                                                           June 29, 2012
                                     No. 11-51282
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MAURO CASTANEDA PALACIO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:03-CR-302-1


Before KING, JOLLY and GRAVES, Circuit Judges.
PER CURIAM:*
        Mauro Castaneda Palacio, federal prisoner # 39711-180, moves for leave
to proceed in forma pauperis (IFP) on appeal from the district court’s denial of
his petition for a writ of audita querela (which enables a defendant to re-open a
judgment in certain circumstances). See FED.R.APP.P. 24; see also 28 U.S.C. §
1651(a); see, e.g., United States v. Miller, 599 F.3d 484, 487-488 (5th Cir. Tex.
2010). In particular, Palacio challenges the 120-month sentence imposed in
connection with his conviction for attempting to entice a minor to engage in

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51282     Document: 00511905500     Page: 2    Date Filed: 06/29/2012

                                  No. 11-51282

sexual activity. Palacio argues that the district court abused its discretion in
denying his petition for writ of audita querela and should have resentenced him
with credit for time spent in federal custody while awaiting trial.                 He
acknowledges that he previously sought relief through a writ of habeas corpus
petition and was denied because his state sentence was credited for his time in
federal custody. See 28 U.S.C. § 2241; see also FED.R.APP.P. 22. Nevertheless,
Palacio argues that the district court should have modified his sentence and
applied a downward departure.
      By moving for leave to proceed IFP on appeal, Palacio is challenging the
district court’s certification that his appeal presents no nonfrivolous issues and
is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997). Palacio’s challenge to his sentence and the denial of credit for time served
is not a legal defense that arose after the judgment. See United States v. Miller,
599 F.3d 484, 487 (5th Cir. 2010). Additionally, equitable grounds will not
justify a writ of audita querela. Id. Therefore, the district court correctly denied
Palacio’s petition.
      In light of the foregoing, Palacio’s IFP motion fails to show error in the
district court’s certification decision and fails to show that he will raise a
nonfrivolous issue on appeal. See Baugh, 117 F.3d at 202; Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983). Therefore, Palacio’s motion for leave to proceed
IFP on appeal is denied and his appeal is dismissed as frivolous. See Baugh, 117
F.3d at 202 & n.24; 5TH CIR. R. 42.2 (“If upon hearing of any interlocutory
motion . . ., it appears to the court that the appeal is frivolous and entirely
without merit, the appeal will be dismissed.”).
      We deny Palacio’s IFP motion, and we dismiss his appeal. Accordingly, we
deny Palacio’s accompanying motion for appointment of counsel as moot because,
given our disposition with respect to Palacio’s appeal, there are no issues before
us at this time. See 18 U.S.C. § 3599; see, e.g., Cantu-Tzin v. Johnson, 162 F.3d
295, 299-300 (5th Cir. 1998). DISMISSED.

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