United States v. Jay Glenewinkel ( 2020 )

Case: 20-50563 Document: 00515676530 Page: 1 Date Filed: 12/16/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 16, 2020
No. 20-50563 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Jay Edward Glenewinkel, also known as Jay Glenewinkel, also
known as Jay E. Glenewinkel,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:10-CR-216-1
Before Clement, Elrod, and Haynes, Circuit Judges.
Per Curiam:*
Jay Edward Glenewinkel, federal prisoner # 56817-280, seeks to
proceed in forma pauperis (IFP) on appeal from the denial of his motion for
a compassionate release reduction in sentence under 18 U.S.C.
*
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opinion should not be published and is not precedent except under the limited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: 20-50563 Document: 00515676530 Page: 2 Date Filed: 12/16/2020
No. 20-50563
§ 3582(c)(1)(A) due to his ill health and the COVID-19 pandemic. He also
moves this court for compassionate release vis-à-vis a 66-month reduction in
sentence.
We construe Glenewinkel’s IFP motion as a challenge to the district
court’s certification that his appeal was not taken in good faith. See 28 U.S.C.
§ 1915(a)(3); Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry
into the good faith of the appeal “is limited to whether the appeal involves
legal points arguable on their merits (and therefore not frivolous).” Howard
v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and
citation omitted).
On the motion of either the Director of the Bureau of Prisons or a
prisoner, § 3582(c)(1)(A) permits a sentencing court to reduce the prisoner’s
term of imprisonment after considering the applicable 18 U.S.C. § 3553(a)
factors if, inter alia, the court finds that “extraordinary and compelling
reasons warrant such a reduction” and “that such a reduction is consistent
with applicable policy statements issued by the Sentencing Commission.”
§ 3582(c)(1)(A)(i); see also U.S.S.G. § 1B1.13, p.s. We review for abuse of
discretion a district court’s decision to deny compassionate release despite a
prisoner’s eligibility. United States v. Chambliss, 948 F.3d 691, 693 (5th Cir.
2020).
In denying Glenewinkel’s motion, the district court considered the
§ 3553(a) factors, including Glenewinkel’s history and characteristics and the
need to protect the public from further crimes of Glenewinkel. See
§ 3553(a)(1), (a)(2)(C); see also § 1B1.13(2), p.s. Glenewinkel has failed to
show that the district court’s decision was based on an error of law or a clearly
erroneous assessment of the evidence. See Chambliss, 948 F.3d at 693-94.
Although, as in Chambliss, Glenewinkel may disagree with how the district
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No. 20-50563
court balanced the § 3553(a) factors, his disagreement provides an
insufficient ground for reversal. See id. at 694.
Glenewinkel’s arguments for appeal are not without arguable legal
merit, although they ultimately fail to succeed, and he meets the financial
eligibility requirements. See § 1915(a)(1); Adkins v. E.I. DuPont de Nemours
& Co., 335 U.S. 331, 339-40 (1948); Howard, 707 F.2d at 220. We therefore
GRANT his motion to proceed IFP on appeal. Nonetheless, because
Glenewinkel has failed to show that the district court abused its discretion in
denying his § 3582(c)(1)(A) motion after weighing the § 3553(a) factors, we
AFFIRM the decision of the district court.
Glenewinkel cites no authority, statutory or otherwise, by which an
appellate court (as opposed to a district court) may reduce a federal
prisoner’s sentence in the first instance under these circumstances, and we
are aware of none. His motion for a compassionate release is therefore
DENIED.
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