                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                             No. 01-31307
                           Summary Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

ROBERT DIXON,

                                          Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                       USDC No. 99-CR-188-N
                       --------------------
                           June 20, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.,

PER CURIAM:*

     Robert Dixon seeks to appeal the denial of his FED. R. CRIM.

P. 12(b)(2) motion in forma pauperis (IFP) and, therefore,

challenges the district court’s certification that his appeal is

not taken in good faith.    Our inquiry “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).


     *
        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that this opinion should not be published and is not precedent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.
                           No. 01-31307
                                -2-

     Dixon argues that the district court improperly denied his

motion to reconsider his Rule 12(b)(2) motion because under the

“mailbox” rule his motion was timely.     He also argues that his

Rule 12(b)(2) motion was timely because his 28 U.S.C. § 2255

motion was pending.   Dixon further contends that due to

ineffective assistance of counsel the court should find his claim

was not waived under FED. R. CRIM. P. 12(f).   In his reply brief,

Dixon asks if this court can reinstate his prior out-of-time

notice of appeal.

     Dixon’s appeal does not involve legal points arguable on the

merits.   First, Dixon misunderstands the ruling that he has

appealed.   The district court did consider the merits.

     In United States v. Cotton, 122 S. Ct. 1781 (2002), the

Supreme Court considered a challenge to the indictment based on

Apprendi v. New Jersey, 530 U.S. 466 (2000), raised on direct

appeal.   The Supreme Court held that a defective indictment does

not deprive a court of jurisdiction and overruled prior law to

the contrary.   Cotton, 122 S. Ct. at 1785.    Consequently, Rule

12(b)(2)’s provision that defenses and objections based on the

indictment’s failure to show jurisdiction or to charge an offense

“shall be noticed by the court at any time during the pendency of

the proceedings” is meaningless where the defendant argues that

the indictment was defective.

     This court does not reach Dixon’s request that it

“reinstate” his attempt to file an out-of-time appeal because it
                           No. 01-31307
                                -3-

was raised for the first time in Dixon’s reply brief.    See Cinel

v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).

     Thus, Dixon’s appeal does not raise any legal point arguable

on its merits.   See Howard, 707 F.2d at 220.   Accordingly, the

motion to proceed IFP is DENIED and the appeal is DISMISSED as

frivolous pursuant to 5TH CIR. R. 42.2; Baugh v. Taylor, 117 F.3d

197, 202 n.24 (5th Cir. 1997).

     MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS.
