* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-51423

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MIGUEL ANGEL JAIMES-JURADO

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:00-CR-37-ALL

Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges. 

PER CURIAM:*

Miguel Angel Jaimes-Jurado, federal prisoner # 04105-180, has filed a

motion for leave to proceed in forma pauperis (IFP) on appeal of the dismissal

of his FED. R. CIV. P. 60(b)(6) motion. Jaimes-Jurado’s motion sought leave to

reinstate the appeal of his sentence to concurrent terms of 240 months of

imprisonment, which was imposed after pleading guilty to one count of illegally

reentering the United States after having been deported in violation of 8 U.S.C.

§ 1326, and to one count of conspiracy to possess with intentto distribute cocaine

United States Court of Appeals

Fifth Circuit

F I L E D

November 13, 2007

Charles R. Fulbruge III

Clerk
No. 06-51423

2

and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. In the

alternative, Jaimes-Jurado asked the district court to characterize his original

notice of appeal as a timely 28 U.S.C. § 2255 motion and to reinstate that

proceeding. 

The district court determined thatitlacked authority to reinstate JaimesJurado’s criminal appeal under Rule 60(b)(6) because the Federal Rules of Civil

Procedure do not apply to criminal cases. The district court also refused to

construe Jaimes-Jurado’s notice of appeal as a timely § 2255 motion. The

district court denied Jaimes-Jurado’s motion to appeal IFPand certified thatthe

appeal was nottaken in good faith under 28 U.S.C. § 1915(a)(3) and FED. R. APP.

P. 24(a).

By moving for IFP, Jaimes-Jurado is challenging the district court’s

certification. See Baugh v. Taylor, 117 F.3d 197, 202-03 (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 citation omitted). Probable success on the merits is not

required. Id.

Jaimes-Jurado indicates that he would appeal the district court’s denial

of his Rule 60(b)(6) motion on the basis that his sentence was an unlawful

upward departure not covered by the appeal waiver included in his plea

agreement. He also complains that his attorney did not withdraw properly from

the case before his appeal was dismissed for want of prosecution. These

arguments do not address the basis of the district court’s denial of his Rule

60(b)(6) motion, but are directed to the merits of his underlying claims. We

cannot review the underlying merits of a case on the appeal of the denial of a

Rule 60(b) motion; review is limited to the grounds for the denial of the Rule

60(b) motion itself. Bailey v. Ryan Stevedoring Co., 894 F.2d 157, 159 (5th Cir.

1990). 
No. 06-51423

3

In addition, the district court’s denial of Jaimes-Jurado’s Rule 60(b)(6)

motion, which would be reviewed for abuse of discretion, was sound. See

Warfield v. Byron, 436 F.3d 551, 555 (5th Cir. 2006). The district court properly

reasoned that it lacked authority to reinstate Jaimes-Jurado’s criminal appeal

under Rule 60(b) because the Federal Rules of Civil Procedure do not apply to

criminal cases. United States v. O’Keefe, 169 F.3d 281, 289 (5th Cir. 1999). The

district court did not abuse its discretion in refusing to construe his prior notice

of appeal as a timely § 2255 motion because Jaimes-Jurado failed to identify any

“extraordinary circumstances”justifying Rule 60(b)(6) relief. Batts v.Tow-Motor

Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995).

Jaimes-Jurado’s appeal of the district court’s denial of his Rule 60(b)(6)

motion is not taken in good faith and is therefore frivolous. See Baugh, 117 F.3d

at 202 & n.24; Howard, 707 F.2d at 220. Accordingly, his motion to proceed IFP

on appeal is denied and the appeal is dismissed. 5TH CIR. R. 42.2; Howard, 707

F.2d at 219-20. 

IFP DENIED; APPEAL DISMISSED.