United States v. Okpalobi

United States Court of Appeals
for the Fifth Circuit

No. 20-30429
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Paige Okpalobi,

Defendant—Appellant.

Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:13-CR-101-7

Before Higginbotham, Smith, and Oldham, Circuit Judges.
Per Curiam:*
Paige Okpalobi, federal prisoner # 34000-034, moves to proceed in
forma pauperis (IFP) on appeal from the denial of her motion for
compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). She also moves
for appointment of counsel and has filed an appellate brief.

*
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opinion should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
FILED
December 7, 2020

Lyle W. Cayce
Clerk
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We construe Okpalobi’s IFP motion as a challenge to the district
court’s certification that her appeal was not taken in good faith. See 28
U.S.C. § 1915(a)(3); Baugh v. Taylor, 117 F.3d 197, 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, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks
and citation omitted). We may determine the merits of the appeal “where
the merits are so intertwined with the certification decision as to constitute
the same issue.” Baugh, 117 F.3d at 202.
Under § 3582(c)(1)(A)(i), a district court may reduce the defendant’s
term of imprisonment, after considering the applicable 18 U.S.C. § 3553(a)
factors, if the court finds that (1) “extraordinary and compelling reasons
warrant such a reduction” and (2) “a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.”
§ 3582(c)(1)(A)(i). The applicable policy statement of the Sentencing
Commission is U.S.S.G. § 1B1.13, p.s. See United States v. Chambliss, 948
F.3d 691, 693 (5th Cir. 2020).
Okpalobi contends that an extraordinary and compelling reason exists
for her compassionate release because her age and medical conditions place
her at high risk in prison during the COVID-19 pandemic. She seeks to
complete the remainder of her sentence in home confinement. Her Bureau
of Prisons (BOP) facility is the satellite camp at FMC Lexington, which is
adjacent to the main FMC Lexington facility.
In denying Okpalobi’s motion for compassionate release, the district
court determined that none of the circumstances listed in the commentary to
§ 1B1.13 applied to Okpalobi and that her motion’s allegations about the
pandemic established only a general fear of COVID-19 that did not amount
to an extraordinary and compelling reason warranting relief under
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§ 3582(c)(1)(A)(i). The district court further determined that the § 3553(a)
factors weighed heavily against granting § 3582(c)(1)(A)(i) relief.
The district court recognized that Okpalobi’s health conditions were
not trivial, but the court found that they did not place her on an “end of life”
trajectory and were not serious medical conditions that substantially
diminished her ability to provide self-care in prison. § 1B1.13, p.s., comment.
(n.1(A)). With respect to the threat of COVID-19 to Okpalobi, the district
court found that, at the time of its June 23, 2020 decision, the FMC
Lexington satellite camp had no COVID-19 cases and that the risk of
COVID-19 spreading to the satellite camp was being mitigated effectively by
BOP countermeasures, such as policies concerning the isolation of inmates
and the protection of staff through masks, self-monitoring, social distancing,
and cleaning of work spaces.
Okpalobi has not shown that the district court abused its discretion in
finding that her existing health conditions and the threat of COVID-19 did
not present an extraordinary and compelling reason warranting
compassionate release. A district court abuses its discretion when it “bases
its decision on an error of law or a clearly erroneous assessment of the
evidence.” Chambliss, 948 F.3d at 693 (internal quotation marks and citation
omitted). Okpalobi’s medical records support the district court’s findings
about her health conditions. Additionally, her own assertions here establish
that there were no COVID-19 cases at her facility before the district court’s
decision, and she has not shown any instance of internal COVID-19 spread
there. Her contentions about COVID-19’s effects on inmates at other
facilities do not show that the threat of COVID-19 to her at the satellite camp
was extraordinary or compelling.
Furthermore, the district court did not abuse its discretion with regard
to the § 3553(a) factors. Okpalobi pleaded guilty to conspiracy to commit
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health care fraud and conspiracy to falsify records in a federal investigation.
The district court observed that she admitted in pleading guilty that she and
co-conspirators used companies she owned or managed to submit fraudulent
claims to Medicare totaling about $49,989,323. The district court “‘is in a
superior position to find facts and judge their import under § 3553(a) in the
individual case.’” Chambliss, 948 F.3d at 693 (quoting Gall v. United States,
552 U.S. 38, 51 (2007)). Here, the district court did not abuse its discretion
in finding that granting Okpalobi compassionate release only 38 months into
her 162-month prison term would not reflect the seriousness of her offenses.
See id.; § 3553(a)(2)(A).
We GRANT Okpalobi’s IFP motion because her arguments for
appeal are not frivolous and she qualifies financially. See § 1915(a)(1); Adkins
v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948); Howard, 707
F.2d at 220. However, we AFFIRM the district court’s decision because
the denial of Okpalobi’s motion for compassionate release was not an abuse
of discretion. See Chambliss, 948 F.3d at 693. Okpalobi’s motion to appoint
counsel is DENIED because the interest of justice does not require the
appointment of counsel here. See Schwander v. Blackburn, 750 F.2d 494, 502-
03 (5th Cir. 1985); Fifth Circuit Plan Under the Criminal
Justice Act, § 3(B).
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