     Case: 17-50033      Document: 00514154591         Page: 1    Date Filed: 09/13/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 17-50033                                FILED
                                  Summary Calendar                      September 13, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DAVID SAMARRIPA, also known as Sleepy,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 1:11-CR-360-14


Before DAVIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       David Samarripa, federal prisoner # 80091-280, has moved for leave to
proceed in forma pauperis (IFP). He seeks to appeal the district court’s denial
of his petition for a writ of audita querela in which he challenged the sentence
imposed for his convictions for conspiracy to possess with intent to distribute
more than five kilograms of cocaine and conspiracy to possess with intent to
distribute more than one kilogram of heroin. Samarripa maintains that (1) the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50033     Document: 00514154591     Page: 2   Date Filed: 09/13/2017


                                  No. 17-50033

district court erred in dismissing his petition for lack of jurisdiction because
the dismissal leaves him with no avenue of judicial review and is contrary to
the Suspension Clause; (2) his sentence is unconstitutional in light of Mathis
v. United States, 136 S. Ct. 2243 (2016); and (3) his prior conviction should not
have been used to enhance his sentence because it is not a categorical match
for a corresponding federal drug offense.
      By moving for leave to proceed IFP on appeal, Samarripa 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).
      Samarripa has not shown that he was entitled to relief under a petition
for writ of audita querela. He does not raise a legal defect that arose after the
judgment and may not seek relief on equitable grounds. See United States v.
Miller, 599 F.3d 484, 487 (5th Cir. 2010). Although he challenges his sentence
based on Mathis, which was decided after his sentencing, he has failed to show
that redress is unavailable through a 28 U.S.C. § 2255 motion. See id. at 487-
88; United States v. Orozco-Ramirez, 211 F.3d 862, 867-68 (5th Cir. 2000). To
the extent that he cannot satisfy the requirements to file a successive § 2255
motion because, inter alia, Mathis did not set forth a new rule of constitutional
law made retroactively applicable to cases on collateral review, see In re Lott,
838 F.3d 522, 523 (5th Cir. 2016), the § 2255 remedy nonetheless is considered
to be available, see Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000).
      Accordingly, Samarripa has failed to show an 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. Thus,



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    Case: 17-50033   Document: 00514154591    Page: 3   Date Filed: 09/13/2017


                               No. 17-50033

Samarripa’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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