IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-40291

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ANTONIO BERRY, also known as Tony Berry,

Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:92-CR-93-1

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Antonio Berry, federal prisoner # 03256-043, appeals the district court’s

order of March 2, 2011, which struck his pro se pleading requesting a sentencing

reduction pursuant to Amendment 505 to the Sentencing Guidelines and denied

on the merits Berry’s motion for a reduction in his sentence based on

Amendment 706. Berry filed a motion to proceed in forma pauperis (“IFP”) on

appeal. Berry also filed a motion for judicial notice, which we construe as a

United States Court of Appeals

Fifth Circuit

F I L E D

January 13, 2012

Lyle W. Cayce

Clerk

 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. 11-40291

supplemental brief, stating that he only intended to appeal the district court’s

denial of his request for a sentencing reduction pursuant to Amendment 505. 

As we conclude that Berry has waived the only issue raised in his notice of

appeal by failing to brief it, we DISMISS his appeal.

Although pro se briefs are afforded liberal construction, Estelle v. Gamble,

429 U.S. 97, 106 (1976), Berry’s notice of appeal specifically designates the

district court’s decision to strike his pro se pleading as the order from which he

appeals. The district court’s order did not address Berry’s Amendment 505 claim

on the merits. However, Berry’s appellate brief is devoted entirely to the

purported merits of that claim, as well as to an argument that his sentence

violates the Ex Post Facto Clause of the Constitution. His brief is devoid of any

argument that the district court’s decision to strike his pro se pleading was

improper. Berry has thus waived the only issue he raised in his notice of appeal

by failing to brief it. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993)

(“‘Although we liberally construe the briefs of pro se appellants, we also require

that arguments must be briefed to be preserved.’” (quoting Price v. Digital

Equip. Corp., 846 F.2d 1026, 1028 (5th Cir.1988))).

Berry has filed repeated frivolous sentencing challenges and appeals

thereof. This appeal is frivolous as he fails to brief the only point he appealed. 

He has previously been warned to cease frivolous filings, see United States v.

Berry, 51 F. App’x 483 (5th Cir. 2002) (per curiam) (unpublished), and he was

previously sanctioned, see United States v. Berry, 262 F. App’x 614 (5th Cir.

2008) (per curiam) (unpublished), but the warning and sanction have apparently

fallen on deaf ears. Accordingly, Berry shall pay a monetary SANCTION to the

clerk of this court in the amount of $200. The clerk of this court and the clerks

of all federal district courts within this circuit are directed to refuse to file any

pro se pleading from Berry challenging this conviction or sentence unless Berry

submits proof of satisfaction of this sanction. If Berry attempts to file in this or

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No. 11-40291

any federal district court any such pleadings, the clerk will docket them for

administrative purposes only. Any submissions which do not show proof that

the sanction has been paid will be dismissed.

Berry’s appeal is DISMISSED, his motion to proceed IFP is DISMISSED

as moot, and a SANCTION is issued.

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Case: 11-40291 Document: 00511724845 Page: 3 Date Filed: 01/13/2012