United States v. Johnson ( 2022 )

Case: 21-30228 Document: 00516240753 Page: 1 Date Filed: 03/16/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 16, 2022
No. 21-30228 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Mario K. Johnson,
Defendant—Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:07-CR-17-1
Before Stewart, Haynes, and Ho, Circuit Judges.
Per Curiam:*
Mario K. Johnson, federal prisoner # 04790-095, moves for leave to
proceed in forma pauperis (IFP) on appeal from the denial of his 18 U.S.C.
§ 3582(c)(1)(A) motion for compassionate release, which was based on both
health concerns and the consecutive nature of Johnson’s federal and state
*
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opinion should not be published and is not precedent except under the limited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: 21-30228 Document: 00516240753 Page: 2 Date Filed: 03/16/2022
No. 21-30228
sentences. He also moves to set a response date for the Government’s merits
brief. Johnson contends that the district court erred by relying on the policy
statement in U.S.S.G. § 1B1.13 to delineate what constitutes extraordinary
and compelling reasons justifying compassionate release and also erred in
analyzing the 18 U.S.C. § 3553(a) factors. See United States v. Shkambi, 993
F.3d 388, 392-93 (5th Cir. 2021); § 3582(c)(1)(A).
By moving in this court to proceed IFP, Johnson challenges the district
court’s certification that his appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into Johnson’s good
faith “does not require that probable success be shown” but “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).
Johnson fails to show an arguable abuse of discretion in the denial of
compassionate release. See id.; see also United States v. Chambliss, 948 F.3d
691, 693 (5th Cir. 2020). In reaching this conclusion, we need not resolve
whether the district court committed error by treating the policy statement
in § 1B1.13 as binding, see Shkambi, 993 F.3d at 393, because the district court
determined that compassionate release was not warranted based on its
consideration of the § 3553(a) factors, see Ward v. United States, 11 F.4th 354,
359-62 (5th Cir. 2021); Chambliss, 948 F.3d at 693-94. Johnson’s contentions
that the district court erred in conducting its § 3553(a) analysis have no
arguable merit. See Chambliss, 948 F.3d at 694.
In light of the foregoing, Johnson fails to raise a nonfrivolous issue for
appeal. See Howard, 707 F.2d at 220. Accordingly, we DISMISS the appeal
as frivolous and DENY the motion to proceed IFP on appeal. See Baugh, 117
F.3d at 202 & n.24; 5th Cir. R. 42.2. We also DENY the motion to set a
response date for the Government’s brief.
2