     Case: 18-50775      Document: 00514963853         Page: 1    Date Filed: 05/20/2019




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

                                                                                FILED
                                    No. 18-50775                            May 20, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

v.

RONALD G. KIPP, also known as Ronald Kipp, also known as Mark Perez,
also known as Ronald G. Kipp, Jr.,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:01-CR-249-1


Before OWEN, WILLETT, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Ronald G. Kipp, federal prisoner # 28517-180, moves for leave to proceed
in forma pauperis (IFP) to appeal the district court’s dismissal of his petition
for a writ of audita querela for lack of jurisdiction. He is challenging the
enhancement of his sentence under the career-offender guideline, which
resulted in a 360-month sentence following his jury trial conviction for



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-50775

possession with intent to distribute 50 grams or more of a substance containing
methamphetamine. He was also convicted of being a felon in possession of a
firearm, for which he received a sentence of 120 months, to be served
concurrently with the drug-offense sentence.
      Kipp argues that in light of intervening changes in circuit law announced
in United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), United States v.
Tanksley, 848 F.3d 347 (5th Cir.), supplemented by 854 F.3d 284 (5th Cir.
2017), and United States v. Burris, 896 F.3d 320 (5th Cir. 2018), opinion
withdrawn, 908 F.3d 152 (5th Cir. 2019), on rehearing, 920 F.3d 942 (5th Cir.
2019), his prior convictions for Texas delivery of heroin and for robbery by
threat can no longer serve as predicates for a career-offender enhancement
under the sentencing guidelines. He contends that he is entitled to seek relief
under a writ of audita querela because it provides a remedy if a legal defense
arises after a judgment was issued that was correct at the time it was entered.
Further, he states that he has no adequate remedy under 28 U.S.C. § 2255,
and he cannot obtain authorization to file a successive § 2255 motion.
      By moving for leave to proceed IFP on appeal, Kipp is challenging the
district court’s certification that his appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into his 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).
      Kipp has not shown that he is entitled to relief under a petition for writ
of audita querela. A prisoner will be eligible for audita querela relief only
“where there is a legal objection to a judgment” that arose after the judgment
and if the prisoner presents a claim that “cannot be brought pursuant to any
other post-conviction remedy.” United States v. Miller, 599 F.3d 484, 488 (5th



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                                 No. 18-50775

Cir. 2010). Although Kipp’s challenge to the career-offender enhancement is
based on case law that was decided after his sentencing, he has failed to show
that he has no remedy through a § 2255 motion. See id. The fact that a movant
cannot meet the requirements for bringing a successive § 2255 motion does not
render the § 2255 remedy unavailable. See Tolliver v. Dobre, 211 F.3d 876, 878
(5th Cir. 2000). Kipp has failed to demonstrate that a remedy is unavailable
under § 2255, which precludes him from obtaining relief under a writ of audita
querela. See Miller, 599 F.3d at 488.
      Accordingly, Kipp has shown no error in the district court’s certification
decision and has not established that he will raise a nonfrivolous issue on
appeal. See Baugh, 117 F.3d at 202; Howard, 707 F.2d at 220. Kipp’s motion
for leave to proceed IFP 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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