     Case: 18-50089      Document: 00514827773         Page: 1    Date Filed: 02/08/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                     United States Court of Appeals

                                    No. 18-50089
                                                                              Fifth Circuit

                                                                            FILED
                                  Summary Calendar                   February 8, 2019
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk


                                                 Plaintiff-Appellee

v.

JOSE PABLO ROBLES PARRA, also known as Jose Parra Robles, also known
as Pablo Robles, also known as Pablo Parra, also known as Pablo Jose Robles-
Parra, also known as Jose Pablo Parra-Robles, also known as Jose Robles, also
known as Jose Robles-Parra, also known as Jose Parra-Robles, also known as
Pablo Parra-Robles, also known as Pablo Jose Parra-Robles, also known as
Jose Parra,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:16-CR-356-1


Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Jose Pablo Robles Parra, federal prisoner # 41943-180, moves this court
to proceed in forma pauperis (IFP) on appeal from the district court’s denial of
his motion to compel the Government to file a U.S.S.G. § 5K1.1 motion. Parra


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50089      Document: 00514827773   Page: 2    Date Filed: 02/08/2019


                                 No. 18-50089

filed the motion almost a year following the imposition of his 100-month
sentence for conspiracy to possess with intent to distribute methamphetamine.
He asserts that the Government agreed during plea negotiations to file a
§ 5K1.1 motion in return for his substantial assistance.
      A federal court may refuse to certify an appeal for IFP status if it is not
taken in good faith. See 28 U.S.C. § 1915(a)(3). An appeal is not taken in good
faith if it fails to present “legal arguments 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). Where an appeal is frivolous
and “the merits are so intertwined with the certification decision as to
constitute the same issue,” the court may deny the IFP motion and dismiss the
appeal. Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997).
      Section § 5K1.1 has no postsentencing application, and only the
Government can file a motion for reduction of a defendant’s sentence pursuant
to 18 U.S.C. § 3553(e) and Federal Rule of Criminal Procedure 35(b). See
United States v. Early, 27 F.3d 140, 141 (5th Cir. 1994); United States v. Lopez,
26 F.3d 512, 523 (5th Cir. 1994). Parra’s motion was also not authorized under
18 U.S.C. § 3742 or 18 U.S.C. § 3582(c)(2). See Early, 27 F.3d at 142. Parra’s
motion was “an unauthorized motion which the district court was without
jurisdiction to entertain.” Id. Parra argues for the first time on appeal that
the Government’s refusal to file the purported § 5K1.1 motion was due to his
status as an undocumented alien. We will not consider a new argument raised
for the first time on appeal. See United States v. Cervantes, 132 F.3d 1106,
1109 (5th Cir. 1998).
      For the foregoing reasons, the request for leave to proceed IFP is
DENIED, and the appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2.




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