Case: 13-40828 Document: 00512590372 Page: 1 Date Filed: 04/09/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-40828
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
April 9, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
LARUE JOHNSON, also known as Juggy,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:09-CR-641-1
Before OWEN, ELROD, and HAYNES, Circuit Judges.
PER CURIAM: *
In June 2010, Larue Johnson, federal prisoner # 64812-279, was
convicted by guilty plea for possession with intent to distribute 92.4 grams of
cocaine base and was sentenced to 120 months of imprisonment and five years
of supervised release. He now requests leave to proceed in forma pauperis
(IFP) from the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion, in
which he sought a sentence reduction pursuant to the Fair Sentencing Act of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40828 Document: 00512590372 Page: 2 Date Filed: 04/09/2014
No. 13-40828
2010 (FSA). By moving to proceed IFP, Johnson challenges the district court’s
implicit certification that the appeal was not taken in good faith. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
The Government has filed a motion to dismiss this appeal due to
Johnson’s failure to file a timely notice of appeal or, in the alternative, to grant
it a 10-day extension to file an appellate brief. The record supports the
Government’s contention. Johnson’s notice of appeal was filed after the
expiration of the time for filing a timely notice of appeal and beyond the time
during which the district court could have extended the time for filing a notice
of appeal. See FED. R. APP. P. 4(b)(1)(A)(i), (b)(4). We therefore dismiss this
appeal as untimely. See id.; see also United States v. Garcia-Cabrera, 472 F.
App’x 340, 341 (5th Cir. 2012)(dismissing sentencing appeal as untimely). 1
The Government’s motion to dismiss is GRANTED, and the appeal is
DISMISSED as untimely. All other motions are DENIED.
1Mindful that the time to appeal is not jurisdictional in a criminal case, we note that
even if we pretermitted the issue of whether Johnson filed a timely notice of appeal and
addressed the merits of the case, his appeal would fail. See United States v. Martinez, 496
F.3d 387, 389 (5th Cir. 2007). As Johnson was sentenced before the FSA’s effective date to
the statutory minimum of 120 months of imprisonment, he was not eligible for a § 3582(c)(2)
reduction. See United States v. Kelly, 716 F.3d 180, 181 (5th Cir.), cert. denied, 134 S. Ct. 439
(2013). Accordingly, Johnson cannot present a nonfrivolous issue, and the appeal would have
to be dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983); 5TH CIR. R. 42.2.
2