     Case: 11-51256       Document: 00512150709         Page: 1     Date Filed: 02/21/2013




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

                                                                            FILED
                                                                         February 21, 2013
                                     No. 11-51256
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

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).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51256    Document: 00512150709     Page: 2   Date Filed: 02/21/2013

                                 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).



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    Case: 11-51256   Document: 00512150709   Page: 3   Date Filed: 02/21/2013

                              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.




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