United States v. Smith ( 2023 )

Case: 23-50052 Document: 00516930062 Page: 1 Date Filed: 10/13/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-50052
Summary Calendar FILED
____________ October 13, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Daniel Thomason Smith,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:16-CR-39-1
______________________________
Before Jones, Higginson, and Ho, Circuit Judges.
Per Curiam: *
Daniel Thomason Smith, federal prisoner # 29163-380, moves for
leave to proceed in forma pauperis (IFP) on appeal from the denial of his 18
U.S.C. § 3582(c)(1)(A)(i) motion for compassionate release. Smith’s IFP
motion challenges the district court’s determination that the appeal is not
taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50052 Document: 00516930062 Page: 2 Date Filed: 10/13/2023
No. 23-50052
Our inquiry into whether the appeal is taken in good faith “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)
(citation omitted).
Smith does not address, and has therefore waived any challenge to,
the denial of any of the claims raised in the § 3582(c)(1)(A)(i) motion at issue,
including his request for compassionate release based upon Covid-19 and his
alleged health conditions. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993) (holding that pro se appellant must brief arguments to preserve them);
Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987) (observing that failure to identify any error in district court’s analysis
is same as if appellant had not appealed). Instead, he raises a series of
arguments which were not mentioned in his § 3582(c)(1)(A)(i) motion and
which we will not consider. See United States v. Thompson, 984 F.3d 431, 432
n.1 (5th Cir. 2021). To the extent that Smith intends to challenge the denials
of his subsequently filed motions for exception and judicial notice, we lack
jurisdiction to consider his arguments because he did not separately file
notices of appeal from the denials of those motions. See Fed. R. App. P.
3(a)(1).
As he has not shown that his appeal involves a nonfrivolous issue,
Smith’s motions to proceed IFP and for appointment of counsel are
DENIED, and his appeal is DISMISSED in part as frivolous and in part
for lack of jurisdiction. See Baugh, 117 F.3d at 202 n.24; 5th Cir. R. 42.2;
Rule 3(a)(1).
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