     Case: 10-51214     Document: 00511551002         Page: 1     Date Filed: 07/26/2011




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

                                                                            FILED
                                                                            July 26, 2011
                                     No. 10-51214
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JAMAICA LATRIN MCDADE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:06-CR-86-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Jamaica Latrin McDade, federal prisoner # 36188-180, moves this court
for leave to proceed in forma pauperis (IFP) in his appeal from the district
court’s order denying his motion, brought pursuant to Rule 60(b) of the Federal
Rules of Civil Procedure, to set aside the sentence imposed following his
conviction of possession with intent to distribute phencyclidine. McDade moved
for IFP below, but the district court denied McDade’s IFP motion and certified
that the appeal was not taken in good faith.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-51214     Document: 00511551002      Page: 2   Date Filed: 07/26/2011

                                    No. 10-51214

      This court’s inquiry into a litigant’s 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). If this court
upholds the district court’s certification that the appeal is not taken in good
faith, the appellant must pay the filing fee or the appeal will be dismissed for
want of prosecution. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Alternatively, this court may dismiss the appeal sua sponte under 5TH CIR.
R. 42.2 if it is frivolous. Id. at 202 n.24.
      McDade argues that the district court improperly sentenced him as a
career offender pursuant to U.S.S.G. § 4B1.1. Relying on Castro v. United
States, 540 U.S. 375, 383 (2003), McDade argues that Rule 60(b) is a proper
vehicle for bringing his sentencing claim.
      In Castro, the Supreme Court concluded that a district court intending to
recharacterize a pro se pleading as an initial § 2255 motion must notify the pro
se litigant of the intended recharacterization, inform the litigant of the
consequences that the recharacterization will have on subsequent § 2255
motions, and provide the litigant with an opportunity to withdraw or amend the
motion. 540 U.S. at 383. Nothing in Castro suggests that Rule 60(b) may be
used to collaterally attack a criminal judgment. This appeal is thus “from the
denial of a meaningless, unauthorized motion.” See United States v. Early, 27
F.3d 140, 142 (5th Cir. 1994). Accordingly, McDade’s appeal of the dismissal of
this motion is dismissed as frivolous. Baugh, 117 F.3d at 202 & n.24; 5TH CIR.
R. 42.2.
      McDade is cautioned that any future frivolous pleadings filed by him in
this court or in any court subject to the jurisdiction of this court will subject him
to sanctions. To avoid sanctions, McDade should review any pending matters
to ensure that they are not frivolous.
      IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.



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