United States Court of Appeals

for the Fifth Circuit

No. 20-30429

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Paige Okpalobi, 

Defendant—Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:13-CR-101-7

Before Higginbotham, Smith, and Oldham, Circuit Judges.

Per Curiam:*

Paige Okpalobi, federal prisoner # 34000-034, moves to proceed in 

forma pauperis (IFP) on appeal from the denial of her motion for

compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). She also moves 

for appointment of counsel and has filed an appellate brief.

* 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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

December 7, 2020

Lyle W. Cayce

Clerk

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We construe Okpalobi’s IFP motion as a challenge to the district 

court’s certification that her appeal was not taken in good faith. See 28 

U.S.C. § 1915(a)(3); Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our 

inquiry into the good faith of the appeal “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). We may determine the merits of the appeal “where 

the merits are so intertwined with the certification decision as to constitute 

the same issue.” Baugh, 117 F.3d at 202.

Under § 3582(c)(1)(A)(i), a district court may reduce the defendant’s 

term of imprisonment, after considering the applicable 18 U.S.C. § 3553(a) 

factors, if the court finds that (1) “extraordinary and compelling reasons 

warrant such a reduction” and (2) “a reduction is consistent with applicable 

policy statements issued by the Sentencing Commission.” 

§ 3582(c)(1)(A)(i). The applicable policy statement of the Sentencing 

Commission is U.S.S.G. § 1B1.13, p.s. See United States v. Chambliss, 948 

F.3d 691, 693 (5th Cir. 2020).

Okpalobi contends that an extraordinary and compelling reason exists 

for her compassionate release because her age and medical conditions place 

her at high risk in prison during the COVID-19 pandemic. She seeks to 

complete the remainder of her sentence in home confinement. Her Bureau 

of Prisons (BOP) facility is the satellite camp at FMC Lexington, which is 

adjacent to the main FMC Lexington facility.

In denying Okpalobi’s motion for compassionate release, the district 

court determined that none of the circumstances listed in the commentary to 

§ 1B1.13 applied to Okpalobi and that her motion’s allegations about the

pandemic established only a general fear of COVID-19 that did not amount 

to an extraordinary and compelling reason warranting relief under 

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§ 3582(c)(1)(A)(i). The district court further determined that the § 3553(a) 

factors weighed heavily against granting § 3582(c)(1)(A)(i) relief.

The district court recognized that Okpalobi’s health conditions were 

not trivial, but the court found that they did not place her on an “end of life” 

trajectory and were not serious medical conditions that substantially 

diminished her ability to provide self-care in prison. § 1B1.13, p.s., comment. 

(n.1(A)). With respect to the threat of COVID-19 to Okpalobi, the district 

court found that, at the time of its June 23, 2020 decision, the FMC 

Lexington satellite camp had no COVID-19 cases and that the risk of 

COVID-19 spreading to the satellite camp was being mitigated effectively by 

BOP countermeasures, such as policies concerning the isolation of inmates 

and the protection of staff through masks, self-monitoring, social distancing, 

and cleaning of work spaces.

Okpalobi has not shown that the district court abused its discretion in 

finding that her existing health conditions and the threat of COVID-19 did 

not present an extraordinary and compelling reason warranting 

compassionate release. A district court abuses its discretion when it “bases 

its decision on an error of law or a clearly erroneous assessment of the 

evidence.” Chambliss, 948 F.3d at 693 (internal quotation marks and citation 

omitted). Okpalobi’s medical records support the district court’s findings 

about her health conditions. Additionally, her own assertions here establish 

that there were no COVID-19 cases at her facility before the district court’s 

decision, and she has not shown any instance of internal COVID-19 spread

there. Her contentions about COVID-19’s effects on inmates at other 

facilities do not show that the threat of COVID-19 to her at the satellite camp 

was extraordinary or compelling.

Furthermore, the district court did not abuse its discretion with regard 

to the § 3553(a) factors. Okpalobi pleaded guilty to conspiracy to commit 

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health care fraud and conspiracy to falsify records in a federal investigation. 

The district court observed that she admitted in pleading guilty that she and 

co-conspirators used companies she owned or managed to submit fraudulent 

claims to Medicare totaling about $49,989,323. The district court “‘is in a 

superior position to find facts and judge their import under § 3553(a) in the 

individual case.’” Chambliss, 948 F.3d at 693 (quoting Gall v. United States, 

552 U.S. 38, 51 (2007)). Here, the district court did not abuse its discretion 

in finding that granting Okpalobi compassionate release only 38 months into 

her 162-month prison term would not reflect the seriousness of her offenses. 

See id.; § 3553(a)(2)(A).

We GRANT Okpalobi’s IFP motion because her arguments for 

appeal are not frivolous and she qualifies financially. See § 1915(a)(1); Adkins 

v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948); Howard, 707 

F.2d at 220. However, we AFFIRM the district court’s decision because 

the denial of Okpalobi’s motion for compassionate release was not an abuse 

of discretion. See Chambliss, 948 F.3d at 693. Okpalobi’s motion to appoint 

counsel is DENIED because the interest of justice does not require the 

appointment of counsel here. See Schwander v. Blackburn, 750 F.2d 494, 502-

03 (5th Cir. 1985); Fifth Circuit Plan Under the Criminal 

Justice Act, § 3(B).

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