eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Fifth Circuit
 2022-12

United States v. Smith ( 2022 )


Menu:
 
  • Case: 22-40164         Document: 00516591575             Page: 1      Date Filed: 12/28/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-40164
FILED
Summary Calendar
December 28, 2022
Lyle W. Cayce
United States of America,                                                    Clerk
Plaintiff—Appellee,
versus
Zack Zembliest Smith, III,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:94-CR-68-1
Before Stewart, Dennis, and Willett, Circuit Judges.
Per Curiam:*
Zack Zembliest Smith, III, federal prisoner # 04838-078, moves for
leave to proceed in forma pauperis (IFP) to appeal the district court’s denial
of his motion for compassionate release under
    18 U.S.C. § 3582
    (c)(1)(A).
Smith also moves this court for leave to amend his motion for compassionate
release. His motion for leave to amend is DENIED, and we do not consider
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40164      Document: 00516591575            Page: 2    Date Filed: 12/28/2022
No. 22-40164
any grounds for compassionate release in the proposed amended complaint
that are raised for the first time on appeal. See United States v.
    Thompson, 984
    F.3d 431, 432 n.1 (5th Cir. 2021); Cinel v. Connick,
    15 F.3d 1338
    , 1346 (5th
Cir. 1994).
To proceed IFP on appeal, Smith must demonstrate both financial
eligibility and a nonfrivolous issue for appeal. See Carson v. Polley,
    689 F.2d 562
    , 586 (5th Cir. 1982). An issue is nonfrivolous if it is arguable on its merits.
Howard v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983). Here, the district court
found that Smith had not shown extraordinary and compelling reasons
justifying a reduction in his sentence and that the
    18 U.S.C. § 3553
    (a) factors
did not support his release. We conclude that Smith has failed to identify a
nonfrivolous basis for challenging the district court’s determination that the
§ 3553(a) factors did not support his release. See United States v. Chambliss,
    948 F.3d 691
    , 693-94 (5th Cir. 2020).
Therefore, we DISMISS Smith’s appeal as frivolous and DENY the
motion to proceed IFP on appeal. See Baugh v. Taylor,
    117 F.3d 197
    , 202 &
n.24 (5th Cir. 1997); 5th Cir. R. 42.2.
2