IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-41135

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

versus

JOSHUA HERRERA,

Defendant–Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:13-CR-33-1

Before JOLLY, SMITH, and GRAVES, Circuit Judges.

PER CURIAM:*

Joshua Herrera, federal prisoner # 21059-078, pleaded guilty of being a 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

March 20, 2017

Lyle W. Cayce

Clerk

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registered sex offender and committing a felony offense involving a minor 

under 18 U.S.C. § 2242(b), in violation of 18 U.S.C. § 2260A. He claims that 

the district court erred in not applying his Federal Rule of Civil Procedure 60(b) 

motion as designated because his motion alleges fraud on the court. He contends that the United States erred in prosecuting him by usurping the authority of the state police power in violation of federalism. He asserts that the 

district court was without subject-matter jurisdiction and that the U.S. Attorney committed fraud on the court by failing to establish such jurisdiction. He 

avers that this fraud resulted in his coerced plea agreement. He contends that 

the statute of conviction is unconstitutional on its face and as applied for 

vagueness. He asks that his conviction and sentence be vacated or, alternatively, that this court vacate and remand the order denying his Rule 60(b) 

motion and direct the district court to address the issues raised in his motion 

without construing or converting it to a 28 U.S.C. § 2255 motion.

In Herrera’s previous appeal, we determined that the district court was 

correct that Rule 60(b) applies to civil cases, not criminal cases. We vacated 

and remanded, concluding that the court should have notified Herrera that it 

intended to recharacterize his motion as a § 2255 motion and should have given 

him an opportunity to withdraw or amend it in accordance with Castro v. 

United States, 540 U.S. 375, 383 (2003). United States v. Herrera, 637 F. App’x 

818 (5th Cir. 2016). The district court complied with those instructions.

Herrera persisted in his demand that the district court treat his motion 

as one under Rule 60(b), and the court again denied his Rule 60(b) motion. The 

government has filed a motion for summary affirmance, urging that the district 

court correctly determined that Rule 60(b) does not afford Herrera the relief he 

seeks and that it properly construed his motion as a § 2255 motion. Given the

history of this case, summary affirmance is appropriate, because “there can be 

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no substantial question as to the outcome.” Groendyke Transp., Inc. v. Davis, 

406 F.2d 1158, 1162 (5th Cir. 1969).

Accordingly, the motion for summary affirmance is GRANTED, and the 

judgment is AFFIRMED. The government’s alternative motions for summary 

dismissal and for an extension of time to file a brief are DENIED as 

unnecessary.

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