IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-30369 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDUARDO BARRAZA-PEREZ,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Louisiana USDC No. 95 CR 20025 - - - - - - - - - - October 31, 1997 Before KING, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:*

Eduardo Barraza-Perez appeals his sentence for illegal

reentry into the United States, a violation of

.

He also argues that his counsel was ineffective for failing to

object to the calculation of his sentencing guideline. The

district court did not clearly err in not grouping Barraza’s drug

conviction with his conviction for illegal reentry after

deportation for purposes of calculating his guideline range of

imprisonment. See United States v. Santana-Castellano, 74 F.3d

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 97-30369 -2-

593, 597 (5th Cir. 1996); United States v. Garcia,

(5th Cir. 1992). Nor did the court err in assessing a

total of six criminal history points for Barraza’s convictions

for drug and firearms charges (three points) and failure to

appear for sentencing on those charges (three points). See

United States v. Packer,

(5th Cir. 1995), cert.

denied,

(1996).

Because Barraza’s sentencing arguments are without merit, he

has not shown that counsel rendered ineffective assistance. See

United States v. Ressler,

(5th Cir. 1993).

Barraza’s wife paid the full $105 appellate filing fee after

Barraza was ordered to do so in accordance with the Prison

Litigation Reform Act (PLRA). This payment was made after

counsel was appointed for Barraza under the Criminal Justice Act

(CJA). The PLRA is inapplicable because that statute applies

only to civil actions brought by prisoners. See

(a)(2). Furthermore, the appointment of appellate counsel

under the CJA obviates the requirement of the appellant

proceeding in forma pauperis. See 18 U.S.C. § 3006A(d)(7).

Although the error has not been raised by counsel and is not

plain, see United States v. Calverly,

, 162-63 (5th

Cir. 1994)(en banc), the filing fee should be refunded in the

interest of fairness. The district court is therefore ORDERED to

reimburse the payor of the appellate filing fee.

AFFIRMED.