IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-10041 USDC No. 3:95-CV-950-H

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CESAR OMAR MARTINEZ, a/k/a Jose Sanchez, a/k/a La Cotorra,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas - - - - - - - - - - January 15, 1997

Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.

PER CURIAM:*

Cesar Martinez (federal inmate #23582-077) has applied to

this court for leave to appeal in forma pauperis (IFP) from the

district court’s denial of his

motion to vacate.

Martinez contends that he is entitled to relief on grounds (1) of

incorrect applications of the Sentencing Guidelines, and (2) that

his guilty plea was induced by his counsel’s false promise and

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-10041 - 2 -

incorrect advice concerning the sentence he would receive.

IT IS ORDERED that leave to appeal IFP is DENIED, because

Martinez’s appeal lacks arguable merit and is therefore

frivolous. See Howard v. King,

(5th Cir.

1983). Because the appeal is frivolous, IT IS FURTHER ORDERED

that the appeal is DISMISSED. See 5th Cir. R. 42.2.

If this court were to hold that a certificate of

appealability (COA) is required in a case such as this, COA would

be denied. See

(c).

IFP DENIED; APPEAL DISMISSED.