     Case: 19-40049      Document: 00515224831         Page: 1    Date Filed: 12/05/2019




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

                                                                                FILED
                                    No. 19-40049                        December 5, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE MARIA COVARRUBIAS,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 2:12-CR-516-1


Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Jose Maria Covarrubias, federal prisoner # 94856-279, was convicted
following his guilty plea to conspiracy to possess with intent to distribute more
than 1,000 kilograms of marijuana and two counts of aiding and abetting with
intent to distribute marijuana. The district court imposed a sentence of 200
months of imprisonment on each count, the terms to run concurrently.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40049      Document: 00515224831     Page: 2   Date Filed: 12/05/2019


                                   No. 19-40049

        Covarrubias has filed a motion to proceed in forma pauperis (IFP) to
appeal the district court’s denial of his second motion for reconsideration of the
district court’s denial of his motion for reduction of his sentence pursuant to
18 U.S.C. § 3582 and Amendment 782 of the Guidelines. This court may
authorize a prisoner to proceed IFP on appeal if he demonstrates that he is a
pauper and that his appeal presents a nonfrivolous issue. Carson v. Polley,
689 F.2d 562, 586 (5th Cir. 1982); see FED. R. APP. P. 24(a)(1). With respect to
whether the appeal is frivolous, the appellant must show that the appeal
“involves legal points arguable on their merits.” Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983) (internal quotation marks and citation omitted).
        Covarrubias has failed to address in his IFP motion and brief the district
court’s determination that he failed to show excusable neglect or cause for
filing an untimely notice of appeal, a dispositive issue on appeal. See United
States v. Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007); FED. R. APP. P. 4(b)(4);
United States v. Leijano-Cruz, 473 F.3d 571, 574 (5th Cir. 2006). He has also
failed to address the district court’s conclusion that it was not authorized to
grant Covarrubias with an extension of time to proceed IFP on appeal based
on Covarrubias’s second untimely notice of appeal because it was not filed
within the period for filing such motion pursuant to Federal Rule of Appellate
Procedure 4(b)(4). See United States v. Awalt, 728 F.2d 704, 705 (5th Cir.
1984). Thus, he has abandoned those arguments on appeal. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Covarrubias has not shown that
the district court’s rulings constituted an abuse of discretion. See United States
v. Clark, 193 F.3d 845, 846 (5th Cir. 1999).
        Covarrubias has not shown that he will raise a nonfrivolous issue on
appeal. See Howard, 707 F.2d at 220. His appeal is DISMISSED as frivolous,
and his motion for leave to proceed IFP on appeal is DENIED. See 5TH CIR. R.
42.2.

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