
    UNITED STATES of America, Plaintiff-Appellee v. Charles SCOTT, Defendant-Appellant In re: CHARLES SCOTT, Movant
    No. 16-50327, No. 16-50894 Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    Date Filed: 09/07/2016
    Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office, San Antonio, TX, for Plaintiff-Appellee
    Charles Scott, Pro Se
    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, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (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 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). 
      
       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.
     