USA v. Dennis Johnson

Filing

UNPUBLISHED OPINION ORDER FILED. [13-31278 Dismissed as Frivolous] Judge: JLD , Judge: LHS , Judge: CH. Mandate pull date is 12/03/2014; denying motion to proceed IFP filed by Appellant Mr. Dennis H. Johnson [7689313-2] [13-31278]

Case: 13-31278

Document: 00512834934

Page: 1

Date Filed: 11/12/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-31278
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
November 12, 2014

UNITED STATES OF AMERICA,
Plaintiff-Appellee

Lyle W. Cayce
Clerk

v.
DENNIS H. JOHNSON,
Defendant-Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:06-CR-98-1
Before DENNIS, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM: *
Dennis H. Johnson, federal prisoner # 04601-095, was convicted at trial
of being a felon in possession of a firearm (Count I), possession of cocaine base
with intent to distribute (Count II), and possession of a firearm in furtherance
of a drug trafficking crime (Count III). He was sentenced to serve concurrent
terms of 96 months of imprisonment on Counts I and II and a consecutive term
of 60 months of imprisonment on Count III. In March 2012, the district court

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-31278

Document: 00512834934

Page: 2

Date Filed: 11/12/2014

No. 13-31278
granted Johnson’s 18 U.S.C. § 3582(c)(2) motion and reduced his total sentence
by 18 months due to retroactive amendments to the sentencing guidelines
related to penalties for crack cocaine. When Johnson was first sentenced,
Count II (the cocaine offense) was the more substantial offense as between
Counts I and II, because it resulted in an offense level of 22 while Count I
resulted in an offense level of 20. After Johnson’s sentence was reduced, Count
I become the more substantial offense, as it remained at level 20, while Count
II decreased to level 16. Now, Johnson moves this court for authorization to
proceed in forma pauperis (IFP) in this appeal from the district court’s denial
of his motion for reconsideration of the order denying his second § 3582(c)(2)
motion.
Johnson argues that he is entitled to a further reduction to his sentence
on Count II as a result of additional reductions in penalties regarding crack
cocaine. The district court denied Johnson’s second § 3582(c)(2) motion and his
subsequent motion for reconsideration.

The district court explained that,

following his reduction of sentence on Count II, Johnson’s current sentence is
controlled by his 78-month sentence on Count I and his consecutive 60-month
sentence on Count III. Since his sentences on Counts I and II run concurrently,
and since Count I is now the more substantial offense of the two (due to having
a higher offense level), any further reduction in his sentence on Count II would
not affect his ultimate sentence. When Johnson moved for leave to proceed on
appeal with IFP status, the district court denied the motion as not taken in
good faith and frivolous. See 28 U.S.C. § 1915(a)(3) (“An appeal may not be
taken in forma pauperis if the trial court certifies in writing that it is not taken
in good faith.”).
Where the appropriateness of IFP status and the merits of the appeal
are closely intertwined, we may simultaneously dispose of both the request for

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Case: 13-31278

Document: 00512834934

Page: 3

Date Filed: 11/12/2014

No. 13-31278
IFP status and the appeal itself. See Baugh v. Taylor, 117 F.3d 197, 202 &
n.24 (5th Cir. 1997). Because the two charges controlling Johnson’s sentence
are currently the firearm charges (Counts I and III), any decrease in his
sentence on Count II would have no impact on his ultimate sentence.
Johnson’s statements to the contrary are wholly meritless. Accordingly, the
appeal is DISMISSED as frivolous and Johnson’s IFP motion is DENIED. See
id.; 5TH CIR. R. 42.2.

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