     Case: 09-11126     Document: 00511231460          Page: 1    Date Filed: 09/13/2010




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

                                                 FILED
                                                                        September 13, 2010
                                     No. 09-11126
                                   Summary Calendar                         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
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 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                   No. 09-11126

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, in violation of 18 U.S.C. § 851(c)(1); (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 sentencing court abused its discretion
in applying § 3559 based on charges that were pending and now have been

                                         2
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                                 No. 09-11126

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 5 TH C IR. R. 42.2.




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