     Case: 09-50978     Document: 00511150565          Page: 1    Date Filed: 06/22/2010




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

                                                 FILED
                                                                            June 22, 2010
                                     No. 09-50978
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ALVIN W. BYRD, JR., also known as Alvin Byrd,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:07-CR-128-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Alvin W. Byrd, Jr., was convicted by a jury of one count of wire fraud, one
count of interstate transportation of stolen property, and five counts of money
laundering. The jury also found that a 2006 Hummer H2, $82,005.51, $5003.53,
and $192,886.87 were proceeds and assets traceable to the wire fraud offense
and were subject to forfeiture. The district court sentenced Byrd to 150 months
in prison on the fraud and money laundering counts and 120 months in prison
on the interstate transportation count, to run concurrently and to be followed by

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50978

a three-year term of supervised release. The court also ordered Byrd to pay a
$100,000 fine and $271,403.33 in restitution, while ordering Byrd to forfeit the
Hummer and $87,009.04 in cash. On direct appeal, this court affirmed Byrd’s
conviction and sentence and the order of preliminary forfeiture. See United
States v. Byrd, No. 08-50275, 2010 WL 1811883, at *1-*5 (5th Cir. May 5, 2010).
      Following the entry of judgment, the district court issued the final order
of forfeiture, requiring Byrd to forfeit $27,000, which constituted the proceeds
from the sale of the Hummer H2; $82,005.51; $5003.53; and $192,886.87. Byrd,
who is proceeding pro se, has appealed this ruling. The district court denied
Byrd leave to proceed in forma pauperis (IFP) because Byrd had not shown that
the appeal was taken in good faith. See United States v. Boutwell, 896 F.2d 884,
889-90 (5th Cir. 1990).
      Byrd now seeks leave from this court to proceed IFP on appeal. This court
may authorize Byrd to proceed IFP if he is unable to pay the costs of the appeal
and the appeal is taken in good faith, i.e., the appeal presents nonfrivolous
issues.   28 U.S.C. § 1915(a)(1).   “An investigation into the [IFP] movant’s
objective good faith, while necessitating a brief inquiry into the merits of the
appeal, does not require that probable success be shown. The inquiry is limited
to whether the appeal involves legal points arguably on their merits (and
therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(internal quotation marks and citation omitted).
      Byrd’s challenge to the final order of forfeiture does not present a
nonfrivolous appellate issue. Byrd contends that he is entitled to challenge the
illegal forfeiture proceedings that arose from an illegally-obtained criminal
conviction based on perjured testimony, prosecutorial and police misconduct, and
the ineffectiveness of the attorney who represented Byrd at his criminal trial.
These claims essentially correlate to allegations raised in Byrd’s direct appeal,
and we have already rejected Byrd’s challenges to the validity of the criminal
proceedings and their effect on the forfeiture order as encapsulated in the final

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                                No. 09-50978

judgment. See Byrd, 2010 WL 1811883, at *1-*4. Byrd additionally argues that
the district court’s denial of IFP status and this court’s requirement of an IFP
motion was improper and denied him access to the courts. Byrd’s implicit
assertion that a challenge to criminal proceedings is per se taken in good faith
ignores the mandate of Boutwell. Additionally, an individual does not have a
constitutional right of access to the courts to raise frivolous claims. See Baum
v. Blue Moon Ventures, LLC, 513 F.3d 181, 193 (5th Cir. 2008).
      Byrd has not established that he will raise a nonfrivolous issue on appeal.
See Howard, 707 F.2d at 220. Because the instant appeal is without merit,
Byrd’s motion to proceed IFP is DENIED. See Boutwell, 896 F.2d at 890. The
appeal is DISMISSED as frivolous. See 5 TH C IR. R. 42.2.




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