     Case: 15-51198      Document: 00513698242         Page: 1    Date Filed: 09/29/2016




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

                                    No. 15-51198
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                       September 29, 2016
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

KURT BRANHAM BARTON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:11-CR-83-1


Before JONES, SMITH, and DENNIS, Circuit Judges.
PER CURIAM: *
       Kurt Branham Barton, federal prisoner # 71720-280, moves for leave to
proceed in forma pauperis (IFP) on appeal. He challenges the district court’s
grant of the Government’s motion for an order applying credit to the restitution
owed by him and his co-participant.
       By moving to proceed IFP, Barton is challenging the district court’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-51198    Document: 00513698242     Page: 2   Date Filed: 09/29/2016


                                 No. 15-51198

117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into an appellant’s 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). We may dismiss the
appeal sua sponte under 5th Circuit Rule 42.2 if it is frivolous. See Baugh, 117
F.3d at 202 n.24; 5TH CIR. R. 42.2.
      For the first time on appeal, Barton argues that the district court’s
application of credits pursuant to the Government’s motion is incorrect because
the district court’s restitution order contained in the amended judgment and
second amended judgment is incorrect.         We do not ordinarily consider
arguments not raised in the district court. See Leverette v. Louisville Ladder
Co., 183 F.3d 339, 342 (5th Cir. 1999).
      Even if we consider his newly raised arguments, Barton has failed to
demonstrate his appeal presents a nonfrivolous issue. The crux of Barton’s
argument is that the restitution order contained in the amended judgment and
the second amended judgment is incorrect, but restitution is a sentencing
issue, and Barton’s substantive challenge to the restitution order should have
been raised on direct appeal. United States v. Hatten, 167 F.3d 884, 887 nn.5,
6 (5th Cir. 1999); see United States v. Segler, 37 F.3d 1131, 1135-36 (5th Cir.
1994).
      Barton’s appeal does not present a legal issue arguable on its merits and
is frivolous. See Howard, 707 F.2d at 219-20. Accordingly, his motion 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.




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