# United States Court **of Appeals**  **f or 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 h er 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* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 7, 2020 Lyle W. Ca yce Clerk Case: 20-30429 Document: 00515663688 Page: 1 Date Filed: 12/07/2020No. 20

- 30429

2 We construe Ok palobi’s IFP motion as a challenge to the district court’s certification that h er 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 “whe re 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 applicab le 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 a ge 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 adjace nt to the main FMC Lexington facility. In denying Okpalobi’s motion for compassionate release, t he 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 Case: 20-30429 Document: 00515663688 Page: 2 Date Filed: 12/07/2020No. 20

- 30429

3 § 3582(c)(1)(A)(i). The district court further determined that the § 3553(a) factors weighed heavily against granti ng § 3582(c)(1)(A)(i) relief.
T he 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 Okp alobi, the district court found that , at the time of its June 23, 2020 decision, the FMC Lexington satellite camp h ad no COVID

- 19 cases and that the risk of COVID

- 19 spreading to the satellite camp was being mitigated effectively by BOP countermeasures, su ch 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 n o 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 Case: 20-30429 Document: 00515663688 Page: 3 Date Filed: 12/07/2020No. 20

- 30429

4 health care fraud and conspiracy to falsify reco rds 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 total ing about $49,989,323. T he 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 tha t granting Okpalobi compassionate release only 38 months into her 162

- month prison term would not reflect the seriousness of her offense s
. 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 bec ause 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

. S ee S chwander v. Blackburn , 750 F.2d 494, 502

- 03 (5th Cir. 1985); **Fifth Circuit Plan Under the Criminal Justice Act**  , § 3(B)

. Case: 20-30429 Document: 00515663688 Page: 4 Date Filed: 12/07/2020