IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-51256

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CHARLES EDWARD JOHNSON,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:07-CR-97-1

Before JOLLY, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

Charles Edward Johnson, federal prisoner # 83808-180, requests leave to

proceed in forma pauperis (IFP) from the district court’s denial of his 18 U.S.C.

§ 3582(c)(2) motion, which sought a sentence reduction pursuant to the recent

amendments to the Sentencing Guidelines that govern crack cocaine offenses. 

By moving to proceed IFP, Johnson challenges the district court’s certification

that the appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197,

202 (5th Cir. 1997). 

United States Court of Appeals

Fifth Circuit

F I L E D

February 21, 2013

Lyle W. Cayce

Clerk

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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No. 11-51256

Section 3582(c)(2) permits the discretionary modification of a defendant’s

sentence “in the case of a defendant who has been sentenced to a term of

imprisonment based on a sentencing range that has subsequently been lowered

by the Sentencing Commission pursuant to 28 U.S.C. [§] 994(o).” § 3582(c)(2);

see United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). The district

court’s decision whether to reduce a sentence under § 3582(c)(2) is reviewed for

an abuse of discretion, while the court’s interpretation of the Guidelines is

reviewed de novo. United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011).

Johnson’s argument that the district court engaged in impermissible

“double counting” by considering factors that it had considered at his initial

sentencing hearing and which were considered by the Sentencing Commission

in reducing the guidelines range is unavailing because the district court must

“consider any applicable [18 U.S.C.] § 3553(a) factors and determine whether,

in its discretion,” any reduction is warranted under the particular facts of the

case. Dillon v. United States, 130 S. Ct. 2683, 2692 (2010). To the extent that

Johnson relies on the law of the case doctrine, “[t]he law of the case doctrine

posits that ordinarily an issue of fact or law decided on appeal may not be

reexamined either by the district court on remand or by the appellate court on

subsequent appeal.” United States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004)

(internal quotation marks and citation omitted). Because Johnson has not

identified any issue of fact or law decided by this court on appeal and

reexamined by the district court on remand, his law-of-the-case argument also

is unavailing. 

Because the district court considered Johnson’s motion and applied the

§ 3553(a) factors in its determination that a sentence reduction was not

warranted, Johnson has not demonstrated that he will present a nonfrivolous

issue with respect to the district court’s denial of his § 3582(c)(2) motion. See

Dillon, 130 S. Ct. at 2691-92; Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). 

2

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No. 11-51256

His request for leave to proceed IFP on appeal is DENIED and the appeal is

DISMISSED. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.

3

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