United States v. Johnson ( 2021 )

Case: 20-50913 Document: 00515841377 Page: 1 Date Filed: 04/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-50913 April 29, 2021
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Charles Edward Johnson,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:07-CR-97-1
Before Higginbotham, Smith, and Oldham, Circuit Judges.
Per Curiam:*
Charles Edward Johnson, federal prisoner # 83808-180, has filed a
motion for leave to proceed in forma pauperis (IFP) on appeal from the
district court’s denial of his motion for a sentence reduction under § 404 of
the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5222 (2018).
*
Pursuant to 5th Circuit 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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
Case: 20-50913 Document: 00515841377 Page: 2 Date Filed: 04/29/2021
No. 20-50913
The district court denied Johnson’s IFP motion and certified that the appeal
had not been taken in good faith. By moving for IFP status, Johnson is
challenging the district court’s certification decision. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997). Johnson has filed two motions to make
amendments to his appellate brief. Those two motions are DENIED.
The First Step Act stipulates that no court may entertain a motion
made under § 404 if a previous motion for a sentence reduction under § 404
was denied on the merits. See First Step Act, § 404(c), 132 Stat. at 5222. In
considering a prior § 404 motion filed by Johnson, the district court
determined that Johnson was eligible for relief but denied the motion on the
merits as a discretionary matter. See id. (providing that nothing in § 404
“shall be construed to require a court to reduce any sentence pursuant to this
section”). So a second motion seeking relief under § 404 was unavailable to
Johnson. See id. Johnson therefore cannot show that his appeal involves
“legal points arguable on their merits (and therefore not frivolous).” Howard
v. King, 707 F.2d 215, 220 (5th Cir. 1983) (per curiam) (internal quotation
marks and citations omitted).
Accordingly, Johnson’s motion to proceed IFP is DENIED, and his
appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5th
Cir. R. 42.2. Johnson is WARNED that the filing of frivolous, repetitive,
or otherwise abusive filings will invite the imposition of sanctions, which may
include dismissal, monetary sanctions, and restrictions on his ability to file
pleadings in this court and any court subject to this court’s jurisdiction.
2