United States v. Larue Johnson , 561 F. App'x 403 ( 2014 )


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  •      Case: 13-40828      Document: 00512590372         Page: 1    Date Filed: 04/09/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 13-40828
    Summary Calendar
    United States Court of Appeals
    Fifth Circuit
    FILED
    April 9, 2014
    UNITED STATES OF AMERICA,
    Lyle W. Cayce
    Clerk
    Plaintiff-Appellee
    v.
    LARUE JOHNSON, also known as Juggy,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 2:09-CR-641-1
    Before OWEN, ELROD, and HAYNES, Circuit Judges.
    PER CURIAM: *
    In June 2010, Larue Johnson, federal prisoner # 64812-279, was
    convicted by guilty plea for possession with intent to distribute 92.4 grams of
    cocaine base and was sentenced to 120 months of imprisonment and five years
    of supervised release. He now requests leave to proceed in forma pauperis
    (IFP) from the district court’s denial of his 
    18 U.S.C. § 3582
    (c)(2) motion, in
    which he sought a sentence reduction pursuant to the Fair Sentencing Act of
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-40828        Document: 00512590372          Page: 2     Date Filed: 04/09/2014
    No. 13-40828
    2010 (FSA). By moving to proceed IFP, Johnson challenges the district court’s
    implicit certification that the appeal was not taken in good faith. See Baugh
    v. Taylor, 
    117 F.3d 197
    , 202 (5th Cir. 1997).
    The Government has filed a motion to dismiss this appeal due to
    Johnson’s failure to file a timely notice of appeal or, in the alternative, to grant
    it a 10-day extension to file an appellate brief.                The record supports the
    Government’s contention.           Johnson’s notice of appeal was filed after the
    expiration of the time for filing a timely notice of appeal and beyond the time
    during which the district court could have extended the time for filing a notice
    of appeal. See FED. R. APP. P. 4(b)(1)(A)(i), (b)(4). We therefore dismiss this
    appeal as untimely. See id.; see also United States v. Garcia-Cabrera, 472 F.
    App’x 340, 341 (5th Cir. 2012)(dismissing sentencing appeal as untimely). 1
    The Government’s motion to dismiss is GRANTED, and the appeal is
    DISMISSED as untimely. All other motions are DENIED.
    1Mindful  that the time to appeal is not jurisdictional in a criminal case, we note that
    even if we pretermitted the issue of whether Johnson filed a timely notice of appeal and
    addressed the merits of the case, his appeal would fail. See United States v. Martinez, 
    496 F.3d 387
    , 389 (5th Cir. 2007). As Johnson was sentenced before the FSA’s effective date to
    the statutory minimum of 120 months of imprisonment, he was not eligible for a § 3582(c)(2)
    reduction. See United States v. Kelly, 
    716 F.3d 180
    , 181 (5th Cir.), cert. denied, 
    134 S. Ct. 439
    (2013). Accordingly, Johnson cannot present a nonfrivolous issue, and the appeal would have
    to be dismissed as frivolous. See Baugh, 
    117 F.3d at
    202 n.24; Howard v. King, 
    707 F.2d 215
    ,
    220 (5th Cir. 1983); 5TH CIR. R. 42.2.
    2
    

Document Info

Docket Number: 13-40828

Citation Numbers: 561 F. App'x 403

Judges: Elrod, Haynes, Owen, Per Curiam

Filed Date: 4/9/2014

Precedential Status: Non-Precedential

Modified Date: 8/31/2023