In Re: Charles Scott

Case: 16-50894 Document: 00513667306 Page: 1 Date Filed: 09/07/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-50327
Fifth Circuit
FILED
Summary Calendar September 7, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
CHARLES SCOTT,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:13-CR-176-3
Consolidated with --------------------------------------------------------
No. 16-50894
In re: CHARLES SCOTT,
Movant
Motion for an order authorizing
the United States District Court for the
Western District of Texas, Waco to consider
a successive 28 U.S.C. § 2255 motion
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No. 16-50894
Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Charles Scott, federal prisoner # 23593-380, moves this court for leave to
appeal in forma pauperis (IFP) from the denial of his motion to reduce his
sentence in light of Johnson v. United States, 135 S. Ct. 2551 (2015). He also
moves for authorization to file a second or successive 28 U.S.C. § 2255 motion
based on Johnson. We consolidate the cases, deny all motions, and dismiss the
appeal from the denial of the motion to reduce the sentence.
By moving to appeal IFP, Scott challenges the certification that his
appeal is not in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997). Our inquiry “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). We may dismiss the appeal if
“it is apparent that an appeal would be meritless.” Baugh, 117 F.3d at 202
& n.24; see 5TH CIR. R. 42.2.
The district court explicitly declined to construe Scott’s motion for a
sentence reduction as a § 2255 motion and instead construed it as a motion
under 18 U.S.C. § 3582. Nonetheless, the motion based on Johnson lacked
merit. Johnson invalidated the so-called “residual clause” definition of “violent
felony” found at 18 U.S.C. § 924(e)(2)(B)(ii), a part of the Armed Career
Criminal Act (ACCA). But Scott’s sentence was not based on the ACCA or on
his being a career offender under any statute or Sentencing Guideline. Nor
was any prior offense treated as a crime of violence or a violent felony under
the ACCA or the Guidelines. Johnson thus has no relevance to Scott’s
* Pursuant to 5TH CIR. R. 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
CIR. R. 47.5.4.
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sentence. Accordingly, Scott’s appeal of the denial of his motion to reduce his
sentence lacks arguable merit. His IFP motion is DENIED and his appeal is
DISMISSED AS FRIVOLOUS. Scott’s motion for appointment of counsel is
also DENIED. The Government’s motions for summary affirmance or for an
extension of time for briefing are DENIED AS MOOT.
After the district court denied Scott’s constructive § 3582 motion, Scott
filed an initial § 2255 motion that is still pending in the district court. Because
Scott’s first § 2255 motion is pending, his motion for authorization to file a
successive § 2255 motion is DENIED AS UNNECESSARY. See § 2255(h).
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