     Case: 10-50496     Document: 00511516015          Page: 1    Date Filed: 06/21/2011




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

                                                 FILED
                                                                            June 21, 2011
                                     No.10-50496
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOHNNY GARCIA-ESPARZA, also known as Gira,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:08-CV-390


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
        Following the district court’s denial of his 28 U.S.C. § 2255 motion
challenging his conviction on charges related to his participation in a criminal
organization, Johnny Garcia-Esparza, federal prisoner # 43813-080, moves this
court for authorization to proceed in forma pauperis (IFP) on appeal. The
district court sentenced Garcia-Esparza to 660 months of imprisonment on one
count, to run concurrently with 240 months of imprisonment on each of several



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50496      Document: 00511516015     Page: 2   Date Filed: 06/21/2011

                                   No. 10-50496

other counts, and to run consecutively to a 60-month term of imprisonment on
one final count.
      Garcia-Esparza asserts that he is impoverished and reurges a number of
arguments this court has previously considered and rejected. He additionally
avers that his trial counsel provided ineffective assistance by failing to challenge
the trial court’s alleged non-adherence to its stated rule excluding witnesses
from the court room except when testifying. Because Garcia-Esparza has raised
no “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); he has failed to show that the district court erred in certifying
that his appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997).
      IT IS ORDERED that Garcia-Esparza’s IFP motion is DENIED. See
Howard, 707 F.2d at 219-20. His appeal is DISMISSED as frivolous. See 5th
Cir. R. 42.2; Baugh, 117 F.3d at 202 n.24.




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