     Case: 12-50624       Document: 00512215804         Page: 1     Date Filed: 04/22/2013




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

                                                                            FILED
                                                                           April 22, 2013
                                     No. 12-50624
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ROBERT KEITH ADAMS,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:97-CR-23-1


Before JOLLY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Robert Keith Adams, federal prisoner # 78734-080 moves this court for
leave to proceed in forma pauperis (IFP) in an appeal of the district court’s
dismissal on jurisdictional grounds of his motion to enforce plea agreement and
correct clerical error in the judgment. He argues that the Government breached
the plea agreement by allowing restitution in an amount greater than the
amount to which Adams agreed in the plea agreement. Further, he asserts that



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50624     Document: 00512215804      Page: 2   Date Filed: 04/22/2013

                                  No. 12-50624

the district court retains jurisdiction to enforce a plea agreement at any time;
therefore, the court’s dismissal for lack of jurisdiction was erroneous.
      A movant for IFP on appeal must show that he is a pauper and that the
appeal is taken in good faith. Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).
This court’s inquiry into Adams’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) (citation omitted).
      To the extent that Adams sought modification of the restitution order, the
district court lacked jurisdiction to address the issue. See United States v.
Hatten, 167 F.3d 884, 887 n.5 (5th Cir. 1999); see United States v. Segler, 37 F.3d
1131, 1135 (5th Cir. 1994). Further, Federal Rule of Criminal Procedure 36 is
the appropriate vehicle for changes that do not substantively alter the orally
announced sentence but instead correct errors in the written judgment. United
States v. Spencer, 513 F.3d 490, 491-92 (5th Cir. 2008).          The amount of
restitution announced at sentencing is consistent with the amount stated in the
judgment of conviction and sentence.
      Adams has not established that he will raise a nonfrivolous appellate
issue. See Carson, 689 F.2d at 586. Accordingly, we DENY the motion to
proceed IFP on appeal, and we DISMISS Adams’s appeal as frivolous. See 5TH
CIR. R. 42.2.




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