United States v. Edge

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-11211 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RODGER LYNN EDGE,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 3:94-CR-194-R - - - - - - - - - - June 27, 1996 Before HIGGINBOTHAM, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Rodger Lynn Edge, #26523-080, seeks in forma pauperis (IFP)

status to appeal the district court’s dismissal of his 28 U.S.C.

§ 2255 motion. Edge’s challenge to the restitution portion of

his sentence is not within the scope of § 2255 because it raises

a nonconstitutional issue that could have been raised on direct

appeal. See United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.  No. 95-11211 - 2 -

1992); United States v. Capua, 656 F.2d 1033, 1037 (5th Cir.

1981).

Having reviewed the record and the relevant law, we DENY the

motion for IFP because this appeal does not involve legal points

arguable on their merits. Jackson v. Dallas Police Dep't, 811

F.2d 260, 261 (5th Cir. 1986). Thus, the appeal is frivolous and

is DISMISSED. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983); 5th Cir. R. 42.2. We caution Edge that any additional

frivolous appeals filed by him will invite the imposition of

sanctions. To avoid sanctions, Edge is further cautioned to

review any pending appeals to ensure that they do not raise

arguments that are frivolous because they have been previously

decided by this court.

MOTION FOR LEAVE TO PROCEED IFP DENIED. APPEAL DISMISSED.

SANCTIONS WARNING ISSUED.