     Case: 15-40882      Document: 00513301403         Page: 1    Date Filed: 12/09/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40882
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         December 9, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

SANJUANITA GARCIA CEPEDA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:10-CR-2481-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Sanjuanita Garcia Cepeda, federal prisoner # 79714-279, pleaded guilty
to one count of importing five kilograms or more of cocaine, and she received a
sentence of 87 months in prison. Seven months after the entry of the criminal
judgment, she filed a motion, purportedly pursuant to 28 U.S.C. § 2243, in
which she asserted that she should have received a minor role adjustment
under U.S.S.G. § 3B1.2. The district court denied relief, concluding that § 2243


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40882

provided only the procedure for federal review of habeas cases and ruling that
Garcia Cepeda’s motion arose under 28 U.S.C. § 2255 but her Sentencing
Guidelines challenge was not cognizable. The district court also denied her a
certificate of appealability (COA) and denied in forma pauperis (IFP) status
because the appeal was not taken in good faith. Garcia Cepeda now moves this
court for leave to proceed IFP on appeal. She asserts that the district court
erred in summarily denying her writ; she contends that § 2243 and Rule 4 of
the Rules Governing 28 U.S.C. § 2254 Proceedings requires a reviewing court
to either grant relief, order the respondent to show cause why relief should not
be granted, or schedule an evidentiary hearing. In addition, Garcia Cepeda
maintains that she was entitled to sentencing relief because she qualified for
the minor role adjustment.
      The Government has filed a motion to dismiss, asserting that because a
COA is required to appeal from the denial of a § 2255 motion, and because
Garcia Cepeda has not moved for a COA, this court lacks jurisdiction over the
proceedings. Alternatively, the Government moves for summary affirmance,
contending that Garcia Cepeda’s sentencing issue is not cognizable under
§ 2255 and that she waived her right to challenge her conviction and sentence
in postconviction proceedings. The Government requests an extension of time
to file a responsive brief if such is necessary.
      To the extent that Garcia Cepeda is appealing the denial of her § 2243
writ, a COA is not necessary to do so. However, in order to proceed IFP, she
must show that she is a pauper and that her appeal is taken in good faith,
involving nonfrivolous issues. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir.
1982). Garcia Cepeda has failed to show that § 2243 provides an independent
basis for challenging her federal sentence. Additionally, her assertion that a
summary dismissal is inappropriate under that statute is incorrect.             See



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                                 No. 15-40882

§ 2243; Harris v. Nelson, 394 U.S. 286, 298-99 (1969). Because Garcia Cepeda’s
postjudgment motion was unauthorized, the district court lacked jurisdiction
to consider it. See United States v. Early, 27 F.3d 140, 141-42 (5th Cir. 1994).
      Garcia Cepeda’s appeal is without arguable merit and is thus frivolous.
See 5TH CIR. R. 42.2. Accordingly, her request for IFP status is DENIED, and
her APPEAL IS DISMISSED. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24
(5th Cir. 1997).
      As noted above, the district court construed Garcia Cepeda’s motion as
arising under § 2255. Garcia Cepeda has not refuted this construction. To the
extent that Garcia Cepeda is seeking review of the denial of a § 2255 motion,
she is required to obtain a COA. See 28 U.S.C. § 2253(c)(2). Although Garcia
Cepeda has not moved for a COA, her IFP brief contains sufficient argument
for this court to consider whether a COA is warranted, to the extent that it is
necessary. Therefore, the Government’s motion to dismiss is DENIED.
      To obtain a COA, Garcia Cepeda must make “a substantial showing of
the denial of a constitutional right.” § 2253(c)(2); Slack v. McDaniel, 529 U.S.
473, 483 (2000). In order to satisfy this standard, she must demonstrate “that
jurists of reason could disagree with the district court’s resolution of [her]
constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,
537 U.S. 322, 327 (2003); see also Slack, 529 U.S. at 484 (stating that an
individual seeking a COA “must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong”). Garcia Cepeda has not made the requisite showing. See Miller-El,
537 U.S. at 327. Consequently, a COA is DENIED. Because we are not
affirming the opinion of the district court, the Government’s motion for




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                                No. 15-40882

summary affirmance is likewise DENIED.         The Government’s alternative
request for an extension of time to file a brief is DENIED as unnecessary.




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