                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  April 11, 2006

                                                           Charles R. Fulbruge III
                              No. 05-30299                         Clerk
                          Conference Calendar


UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

GUILLERMO MARZON, also known as Guillermo Marzan, also known as
Federico Rivera,

                                           Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                 for the Eastern District of Louisiana
                         USDC No. 2:99-CR-70-1
                          --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

     Guillermo Marzon, federal prisoner # 04490-070, has filed an

application for leave to proceed in forma pauperis (IFP) on

appeal following the district court’s denial of his pro se “Nunc

Pro Tunc Motion for Amendment of Judgement (i.e. Concurrent

Sentencing) Pursuant to Federal Rules of Civil Procedure - Rule

60(b)(6).”     In that motion, Marzon sought amendment of his 1999

criminal sentence to run concurrently with, rather than

consecutively to, another sentence.


     *
        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that this opinion should not be published and is not precedent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.
                            No. 05-30299
                                 -2-

       The district court denied Marzon leave to proceed IFP on

appeal, certifying that the appeal was not taken in good faith.

By moving for IFP here, Marzon is challenging the district

court’s certification.    See Baugh v. Taylor, 117 F.3d 197, 202

(5th Cir. 1997); FED. R. APP. P. 24(a).    Marzon does not challenge

the district court’s determinations that Rule 60(b) was

inapplicable to his criminal case or that an amendment to his

sentence was not authorized by 18 U.S.C. § 3582(c).     Marzon’s

sole argument is that the district court should not have

recharacterized his motion as an initial 28 U.S.C. § 2255 motion

without following the procedure set forth Castro v. United

States, 540 U.S. 375 (2003), involving notice and leave to amend.

We do not consider the court’s alternative discussion of § 2255

and the applicability of the statute of limitations to be a

“recharacterization.”    However, even if it were, such

recharacterization without warning is not reversible error.     It

merely means that “the motion cannot be considered to have become

a § 2255 motion for purposes of applying to later motions the

law’s ‘second or successive’ restrictions.”     Castro, 540 U.S. at

383.

       Marzon has failed to show that his appeal involves “‘legal

points arguable on their merits (and therefore not frivolous).’”

Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).     Accordingly,

his IFP motion is DENIED and the appeal is DISMISSED as

FRIVOLOUS.    See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
