     Case: 15-30659      Document: 00513486677         Page: 1    Date Filed: 04/29/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                      No. 15-30659                               FILED
                                                                             April 29, 2016
                                                                            Lyle W. Cayce
MARK JACQUES,                                                                    Clerk

                                                 Plaintiff-Appellant

v.

UNITED STATES             SENTENCING          COMMISSION;           UNITED           STATES
CONGRESS,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:15-CV-1216


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Mark Jacques, federal prisoner # 75560-004, moves for leave to proceed
in forma pauperis (IFP) on appeal from the dismissal of his civil rights claims
under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). Jacques, who was sentenced as a career offender to life
imprisonment following a conviction for possession of crack cocaine, argued
that the Fair Sentencing Act (FSA) should be retroactively applied to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30659

defendants, like him, who were sentenced before the FSA’s enactment and that
the failure to apply the FSA violated his equal protection rights.
       The district court concluded that a Bivens action was not the proper
proceeding for contesting the length of a sentence and that Jacques was barred
from recovering monetary damages for his allegedly unconstitutional
imprisonment under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). The
district court denied Jacques’s IFP motion and certified that an appeal would
not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) and FED. R. APP.
P. 24(a)(3).
       By moving to proceed IFP on appeal, Jacques is challenging the district
court’s certification that his appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into whether the appeal
is taken in 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) (internal quotation marks and citations omitted).
       Jacques’s claim regarding the FSA does not raise a nonfrivolous issue for
appeal. See United States v. Kelly, 716 F.3d 180, 181 (5th Cir. 2013). Further,
although Jacques cites Heck, he does not challenge the district court’s
determination that his claims for monetary damages are barred by Heck.
Regardless, he has not shown that his conviction or sentence has been
“reversed on direct appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such determination, or called into question
by a federal court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486-
87.
       Accordingly, because Jacques has not shown that his “appeal involves
legal points arguable on their merits,” Howard, 707 F.2d at 220, his IFP motion




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                                  No. 15-30659

is denied, and the appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202
& n.24; 5TH CIR. R. 42.2.
      The district court’s dismissal of his complaint and the dismissal of this
appeal as frivolous count as two strikes under 28 U.S.C. § 1915(g).           See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).            Jacques is
warned that if he accumulates three strikes under § 1915(g), he will not be able
to proceed IFP in any civil action or appeal filed while he is incarcerated or
detained in any facility unless he is under imminent danger of serious physical
injury. See § 1915(g).
      IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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