IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-11126

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARK LINNEAR HAYS,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:95-CR-141-2

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:

*

Mark Linnear Hays, federal prisoner # 46431-019, seeks leave to proceed

in forma pauperis (IFP) on appeal from the district court’s denial of his 18 U.S.C.

§ 3559(c)(7) motion for resentencing. In 1996, Hays was convicted of conspiracy

to obstruct commerce by robbery (count 1), obstruction of commerce by robbery

(count 2), using and carrying a firearm during and in relation to a crime of

violence (count 3), and possession of a firearm by a felon (count 5), and was

sentenced to two consecutive terms of life imprisonment on counts 2 and 3,

United States Court of Appeals

Fifth Circuit

F I L E D

September 13, 2010

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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pursuant to § 3559(c), the federal “three strikes law,” and to additional terms of

imprisonment on the remaining counts. By moving to proceed IFP, Hays is

challenging the district court’s certification decision that his appeal was not

taken in good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197,

202 (5th Cir. 1997).

Pursuant to § 3559(c)(7), a defendant shall be resentenced if a prior

conviction that was a basis for sentencing under § 3559 “is found, pursuant to

any appropriate State or Federal procedure, to be unconstitutional or is vitiated

on the explicit basis of innocence, or if the convicted person is pardoned on the

explicit basis of innocence.” § 3559(c)(7). Although Hays asserts that two of his

prior convictions were dismissed, he does not argue that those convictions were

found to be unconstitutional or were vitiated on the explicit basis of innocence

or that he was pardoned on the explicit basis of innocence. His failure to

challenge to the magistrate judge’s determination, adopted by the district court,

that he did not qualify for resentencing under § 3559(c)(7) is the same as if he

had not appealed the judgment. Brinkmann v. Dallas County Deputy Sheriff

Abner, 813 F.2d 744, 748 (5th Cir. 1987).

Hays states in his IFP motion that he will raise the following issues on

appeal: (1) the use of his prior pending charges to enhance his sentence violated

§ 3559(c) and Congressional intent; (2) those pending charges have now been

dismissed, barring their use for § 3559(c) sentencing purposes; (3) the district

court erroneously sentenced him pursuant to a preponderance-of-the-evidence

standard, in violation of 18 U.S.C. § 851(c)(1); (4) the Government’s

enhancement notice erroneously listed one prior burglary conviction as two prior

convictions, neither of which should have been considered as “serious violent

felonies”; and (5) the denial of his constitutional right to counsel on direct appeal

should be considered a total miscarriage of justice in this case. He raises only

three issues in his appellate brief: (1) the sentencing court abused its discretion

in applying § 3559 based on charges that were pending and now have been

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dismissed; (2) the United States Attorney was vindictive in seeking life

imprisonment under the three-strikes law; and (3) plain error was overlooked on

direct appeal, where he was denied his constitutional right to counsel, causing

a miscarriage of justice.

None of these alleged errors are grounds for resentencing under

§ 3559(c)(7), and Hays does not argue that they are. Hays has failed to show

that he will raise a nonfrivolous issue on appeal. See Howard v. King, 707 F.2d

215, 220 (5th Cir. 1983). Accordingly, his motion for IFP is DENIED. Because

the appeal is frivolous, it is DISMISSED. See 5TH CIR. R. 42.2.

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