### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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 pris o n e r # 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 mo ti o n f o r j u dicial notice, which we construe as a U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary13 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat thisop inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 TH C IR

. R. 47.5 .4. Case: 11-40291 Document: 00511724845 Page: 1 Date Filed: 01/13/2012No. 11-40291

supplemental brief, stating that he only inten d e d to appeal the district court’s denial of his reque st for a sentencing reduction pursuant to Amendment 505. As we conclude that Berry has waived the only issue raised in h i s 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 d e signates 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 a d dress Berry’s Amendment 505 claim

on the merits. However, B e rry’ s a ppellate brief is devoted entirely to the
p u r p o rted merits of that claim, as well as to an argument that his se nt e n c e 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 t o b e p r eserved.’” (quoting Price v. Digital Equip. Corp. , 846 F.2d 1026, 1028 (5th Cir.1 988))). 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 b e e n warned to cease frivolous filings, see United States v. Berry , 51 F. App’x 483 (5th Cir. 2002) (per c u ri a m) (u n p ublished), 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 s anction 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
2 Case: 11-40291 Document: 00511724845 Page: 2 Date Filed: 01/13/2012No. 11-40291

any federal distri c t c ourt any such pleadings, the clerk will docket them for administrative purp o s es 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.

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