     Case: 16-50327        Document: 00513667272          Page: 1      Date Filed: 09/07/2016




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals

                                      No. 16-50327
                                                                                      Fifth Circuit

                                                                                    FILED
                                    Summary Calendar                         September 7, 2016
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                    Plaintiff-Appellee

v.

CHARLES SCOTT,

                                                    Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 6:13-CR-176-3


Consolidated with --------------------------------------------------------


                                        No. 16-50894


In re: CHARLES SCOTT,

                                                    Movant


                          Motion for an order authorizing
                      the United States District Court for the
                     Western District of Texas, Waco to consider
                       a successive 28 U.S.C. § 2255 motion
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                                   No. 16-50327 c/w
                                    No. 16-50894

Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Charles Scott, federal prisoner # 23593-380, moves this court for leave to
appeal in forma pauperis (IFP) from the denial of his motion to reduce his
sentence in light of Johnson v. United States, 135 S. Ct. 2551 (2015). He also
moves for authorization to file a second or successive 28 U.S.C. § 2255 motion
based on Johnson. We consolidate the cases, deny all motions, and dismiss the
appeal from the denial of the motion to reduce the sentence.
       By moving to appeal IFP, Scott challenges the certification that his
appeal is not in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997). Our inquiry “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) (citation omitted). We may dismiss the appeal if
“it is apparent that an appeal would be meritless.” Baugh, 117 F.3d at 202
& n.24; see 5TH CIR. R. 42.2.
       The district court explicitly declined to construe Scott’s motion for a
sentence reduction as a § 2255 motion and instead construed it as a motion
under 18 U.S.C. § 3582. Nonetheless, the motion based on Johnson lacked
merit. Johnson invalidated the so-called “residual clause” definition of “violent
felony” found at 18 U.S.C. § 924(e)(2)(B)(ii), a part of the Armed Career
Criminal Act (ACCA). But Scott’s sentence was not based on the ACCA or on
his being a career offender under any statute or Sentencing Guideline. Nor
was any prior offense treated as a crime of violence or a violent felony under
the ACCA or the Guidelines.            Johnson thus has no relevance to Scott’s


       * 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. 16-50327 c/w
                                 No. 16-50894

sentence. Accordingly, Scott’s appeal of the denial of his motion to reduce his
sentence lacks arguable merit. His IFP motion is DENIED and his appeal is
DISMISSED AS FRIVOLOUS. Scott’s motion for appointment of counsel is
also DENIED. The Government’s motions for summary affirmance or for an
extension of time for briefing are DENIED AS MOOT.
      After the district court denied Scott’s constructive § 3582 motion, Scott
filed an initial § 2255 motion that is still pending in the district court. Because
Scott’s first § 2255 motion is pending, his motion for authorization to file a
successive § 2255 motion is DENIED AS UNNECESSARY. See § 2255(h).




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