* 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should not be published and is not precedent except under the limited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. 07-10430

Conference Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MERVIN GLEN ANDERSON

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:90-CR-165-ALL

Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:*

Mervin Glen Anderson, federal prisoner # 12497-076, appeals the district

court’s denial of his request for a writ of audita querela challenging his sentence

for kidnapping and violating the Mann Act. He argues that he is entitled to

resentencing under Amendment 478 to the Sentencing Guidelines, which

modified the background commentary to U.S.S.G. § 2A4.1, a Guideline pursuant

to which he received a four-level enhancement to his base offense level. He

asserts that audita querela relief is available because he has no other means of

United States Court of Appeals

Fifth Circuit

F I L E D

December 11, 2007

Charles R. Fulbruge III

Clerk
No. 07-10430

2

raising his claim and that Amendment 478 should be applied retroactively

because it was a clarifying amendment.

Even if audita querela relief were available to him, Anderson would not

be entitled to it because Amendment 478 is not listed in U.S.S.G. § 1B1.10(c),

and clarifying amendments to the Guidelines not listed in that subsection are

not retroactively applicable except upon direct review. See United States v.

Drath, 89 F.3d 216, 217-18 (5th Cir. 1996). Anderson’s appeal is without

arguable merit. Accordingly, it is dismissed as frivolous. See 5TH CIR. R. 42.2;

Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

We have previously imposed a sanction against Anderson for filing

frivolous challenges to his conviction and sentence and warned him that filing

further frivolous challenges would result in the imposition of further sanctions.

We now order Anderson to pay $200 as a sanction to the clerk of this court.

Anderson is barred from filing in this court or in any court subject to this court’s

jurisdiction any challenge to his conviction or sentence until the total amount of

the sanction imposed on him is paid in full. Moreover, the clerk of this court and

the clerks of the district courts are directed to refuse to file any challenge by

Anderson to his conviction or sentence unless Anderson submits proof of

satisfaction of this sanction. If Anderson attempts to file any such notices of

appeal or original proceedings in this court without such proof, the clerk shall

docket them for administrative purposes only. Any such submissions which do

not show proof that the sanction has been paid will neither be addressed nor

acknowledged. Anderson is also warned that filing any future frivolous or

repetitive challenges to his conviction or sentence in this court or any court

subjectto this court’s jurisdiction will subject him to additional sanctions, as will

the failure to withdraw any such pending challenges that are frivolous. 

APPEAL DISMISSED; SANCTION IMPOSED; SANCTION WARNING

ISSUED.