     Case: 16-41135      Document: 00513917762        Page: 1     Date Filed: 03/20/2017




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

                                   No. 16-41135                                    FILED
                                 Summary Calendar                            March 20, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk


UNITED STATES OF AMERICA,

                                                Plaintiff–Appellee,

versus

JOSHUA HERRERA,

                                                Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:13-CR-33-1




Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *

      Joshua Herrera, federal prisoner # 21059-078, pleaded guilty of being a



      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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. 16-41135

registered sex offender and committing a felony offense involving a minor
under 18 U.S.C. § 2242(b), in violation of 18 U.S.C. § 2260A. He claims that
the district court erred in not applying his Federal Rule of Civil Procedure 60(b)
motion as designated because his motion alleges fraud on the court. He con-
tends that the United States erred in prosecuting him by usurping the author-
ity of the state police power in violation of federalism. He asserts that the
district court was without subject-matter jurisdiction and that the U.S. Attor-
ney committed fraud on the court by failing to establish such jurisdiction. He
avers that this fraud resulted in his coerced plea agreement. He contends that
the statute of conviction is unconstitutional on its face and as applied for
vagueness. He asks that his conviction and sentence be vacated or, alterna-
tively, that this court vacate and remand the order denying his Rule 60(b)
motion and direct the district court to address the issues raised in his motion
without construing or converting it to a 28 U.S.C. § 2255 motion.

      In Herrera’s previous appeal, we determined that the district court was
correct that Rule 60(b) applies to civil cases, not criminal cases. We vacated
and remanded, concluding that the court should have notified Herrera that it
intended to recharacterize his motion as a § 2255 motion and should have given
him an opportunity to withdraw or amend it in accordance with Castro v.
United States, 540 U.S. 375, 383 (2003). United States v. Herrera, 637 F. App’x
818 (5th Cir. 2016). The district court complied with those instructions.

      Herrera persisted in his demand that the district court treat his motion
as one under Rule 60(b), and the court again denied his Rule 60(b) motion. The
government has filed a motion for summary affirmance, urging that the district
court correctly determined that Rule 60(b) does not afford Herrera the relief he
seeks and that it properly construed his motion as a § 2255 motion. Given the
history of this case, summary affirmance is appropriate, because “there can be


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                                No. 16-41135

no substantial question as to the outcome.” Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969).

      Accordingly, the motion for summary affirmance is GRANTED, and the
judgment is AFFIRMED. The government’s alternative motions for summary
dismissal and for an extension of time to file a brief are DENIED as
unnecessary.




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