### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 41135 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

–

Appellee ,

v ersus
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 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED March 20, 2017 Lyle W. Cayce Clerk Case: 16-41135 Document: 00513917762 Page: 1 Date Filed: 03/20/2017No. 16

- 41135

2 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 con
tends that the United States erred in prosecuting hi m by usurping the author

ity of the state police power in violation of federa lism. He asserts that the dis trict court was without subject

- matter jurisdiction and that the U.S. Attor

ney committed fraud on the court by failing to establish such juris diction. He

a vers that this fraud resulted in his coerced plea agreement. He co ntends that the statute of conviction is unconstitutional on its face and as applied for
vague ness. He asks that his conviction and sentence be vacated or, alter na
tively, 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, n ot criminal cases. W e 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 th o se 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
g overnment has filed a motion for summary affirmance, u rging 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 Case: 16-41135 Document: 00513917762 Page: 2 Date Filed: 03/20/2017No. 16

- 41135

3 no substantial question as to the outcome.” Groendyke Transp., Inc. v. Davis , 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, the motio n for summary affirmance is GRANTED, and the judgment is AFFIRMED. The g overnment’s alternative motions for summary dismissal and for an extension of time to file a brief are DENIED as

unnecessary. Case: 16-41135 Document: 00513917762 Page: 3 Date Filed: 03/20/2017