Case: 20-10427      Document: 00515584479         Page: 1    Date Filed: 09/30/2020




              United States Court of Appeals
                   for the Fifth Circuit
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                    September 30, 2020
                                  No. 20-10427                          Lyle W. Cayce
                                Summary Calendar                             Clerk



   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Robert Lynn Bell,

                                                          Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:93-CR-302-1


   Before Stewart, Graves, and Higginson, Circuit Judges.
   Per Curiam:*
          Robert Lynn Bell, federal prisoner # 24923-077, moves this court for
   leave to proceed in forma pauperis (IFP) on appeal of the denial of his motion
   for compassionate release under 18 U.S.C. § 3582(c)(1)(A). We construe
   Bell’s IFP motion as a challenge to the district court’s certification that his


          *
            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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                                     No. 20-10427


   appeal was not taken in good faith. See 28 U.S.C. § 1915(a)(3); Baugh v.
   Taylor, 

, 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, 

,
   220 (5th Cir. 1983) (internal quotation marks and citations omitted).
          On the motion of either the Director of the Bureau of Prisons (BOP)
   or a prisoner, § 3582(c)(1)(A) permits a court to reduce the prisoner’s term
   in prison after considering the applicable 18 U.S.C. § 3553(a) factors, if, inter
   alia, the court finds that “extraordinary and compelling reasons warrant such
   a reduction” and “that such a reduction is consistent with applicable policy
   statements issued by the Sentencing Commission.” § 3582(c)(1)(A)(i).
   Following the First Step Act of 2018, a prisoner may raise a § 3582(c)(1)(A)
   motion if he has exhausted his administrative rights to appeal the BOP’s
   failure to bring such a motion or has waited 30 days after the warden’s receipt
   of the request, whichever is earlier. Id.; see First Step Act of 2018, Pub. L.
   115-391, § 603(b)(1), 132 Stat. 5194, 5239. Although it is not clear that Bell
   exhausted his administrative remedies before filing his § 3582(c)(1)(A)
   motion, his failure to do so does not deprive this court of jurisdiction. See
   United States v. Franco, ___ F.3d ___, No. 20-60473, 

, at
   *1 (5th Cir. Sept. 3, 2020). Accordingly, we address the merits of Bell’s
   claims.
          Bell contends that he is entitled to compassionate release under
   § 3582(c)(1)(A), based on the extraordinary and compelling reasons that his
   240-month federal sentence—which was ordered to run consecutively to
   various state court sentences—is unduly long and because his guilty plea was
   not knowing and voluntary. Under the Sentencing Commission’s policy
   statement at U.S.S.G. § 1B1.13, a court may modify a sentence if it
   determines that (1) there are “extraordinary and compelling reasons”;
   (2) “[t]he defendant is not a danger to the safety of any other person or to the



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                                    No. 20-10427


   community, as provided in 18 U.S.C. § 3142(g); and (3) the reduction is
   consistent with [the § 1B1.13] policy statement.” § 1B1.13, p.s. The
   commentary to § 1B1.13 provides a list of circumstances that constitute
   “extraordinary and compelling reasons.” § 1B1.13, p.s., comment. (n.1(A)-
   (D)). Bell does not contend that he qualifies for any of the circumstances
   listed in the commentary, and, indeed, a reduction of his sentence based on
   his proffered reasons would not be consistent with the policy statements set
   forth in § 1B1.13. See § 3582(c)(1)(A)(i).
          Given that Bell has failed to identify an extraordinary and compelling
   reason for compassionate release that “is consistent with applicable policy
   statements issued by the Sentencing Commission,” § 3582(c)(1)(A)(i), he
   has not shown that his appeal presents a nonfrivolous issue, see 

.     Accordingly, Bell’s motion for leave to proceed IFP is
   DENIED. We further DISMISS his appeal sua sponte as frivolous. See
   

& n.24; 5TH CIR. R. 42.2. We CAUTION Bell that
   frivolous, repetitive, or otherwise abusive filings may invite the imposition of
   sanctions, including dismissal, monetary sanctions, and restrictions on his
   ability to file pleadings in this court and any court subject to this court’s
   jurisdiction.




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