IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-50023 Summary Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ADAM SALAZAR,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. CA-93-SA-316 CR-91-SA-65 - - - - - - - - - - (October 19, 1995) Before KING, SMITH and BENAVIDES, Circuit Judges.

PER CURIAM:*

IT IS ORDERED that Adam Salazar's motion for leave to

proceed in forma pauperis (IFP) on appeal is DENIED. Salazar has

not shown that he will present a nonfrivolous issue on appeal.

Carson v. Polley,

(5th Cir. 1982). Because the

appeal is frivolous, it is DISMISSED. 5th Cir. R. 42.2.

Salazar pleaded guilty to a one-count information charging

him with possession of marijuana with intent to distribute. He

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. No. 95-50023 -2-

was sentenced to 60 months imprisonment, three years supervised

release, and a $50 special assessment. Salazar filed a motion

under

alleging, inter alia, that his guilty plea

was involuntary The district court denied relief and dismissed

the motion.

The district court dismissed Salazar's claim that his guilty

plea was involuntary because the district court did not inform

him of the mandatory minimum sentence under the Sentencing

Guidelines as procedurally barred. On appeal Salazar argues the

merits of the claim, but does not challenge the basis of the

district court's dismissal. Therefore, the procedural-default

issue is abandoned. See Yohey v. Collins,

(5th Cir. 1993) (issues not properly raised or briefed are

considered abandoned).

The district court denied Salazar's claim that his guilty

plea was involuntary because he was suffering from a severe

headache during the guilty plea on the merits. The district

court determined that there was insufficient evidence to

establish that Salazar was suffering from a debilitating headache

during the guilty plea hearing. Salazar has not demonstrated

that the district court's factual finding that he did not suffer

from a headache is clearly erroneous, see United States v.

Gipson,

(5th Cir. 1993), and he has not

demonstrated that he was incompetent enter his guilty plea. See

Godinez v. Moran,

(1993).

Salazar does argue that the district court improperly

listened to the audiotape of the guilty plea hearing because it No. 95-50023 -3-

was not part of the record. The magistrate judge granted the

Government's motion to supplement the record with the audiotape,

and Salazar did not appeal the order to the district court.

Therefore, this court does not have jurisdiction to review the

propriety of this order. See Colburn v. Bunge Towing, Inc.,

(5th Cir. 1989).

IFP DENIED; appeal DISMISSED; motion for appointment of

counsel DENIED. See Schwander v. Blackburn,

(5th Cir. 1985).