United States v. Alfredo Alvarez , 668 F. App'x 79 ( 2016 )


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  •      Case: 15-50761      Document: 00513637979         Page: 1    Date Filed: 08/15/2016
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 15-50761                               FILED
    c/w No. 15-50917                       August 15, 2016
    Summary Calendar
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    ALFREDO ALVAREZ,
    Defendant-Appellant
    Appeals from the United States District Court
    for the Western District of Texas
    USDC No. 1:12-CR-234-7
    Before REAVLEY, OWEN, and ELROD, Circuit Judges.
    PER CURIAM: *
    Alfredo Alvarez, federal prisoner # 99551-280, appeals the district court’s
    denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction of his sentence for
    conspiracy to distribute a controlled substance, as well as the denial of his
    motion to reconsider. However, he did not file his motion to reconsider within
    the 14-day period for seeking an appeal from the denial of his § 3582(c)(2)
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50761    Document: 00513637979     Page: 2   Date Filed: 08/15/2016
    No. 15-50761
    motion. Rule 4(b)’s time limit is not jurisdictional, United States v. Martinez,
    
    496 F.3d 387
    , 388-89 (5th Cir. 2007), and may be forfeited if not asserted. See
    Eberhart v. United States, 
    546 U.S. 12
    , 19 (2005) (explaining that a
    nonjurisdictional, “inflexible claim-processing rule” can be forfeited but
    assures relief when properly asserted). Although the government did not
    participate in the proceeding in the district court, it has not raised the
    untimeliness of the motion to reconsider in this court and has thus forfeited
    any challenge thereto. See 
    id. The district
    court denied Alvarez’s § 3582(c)(2) motion, despite
    concluding that Alvarez was “technically eligible for a reduction,” because it
    determined that his 110-month sentence was reasonable, protected the public
    from his further crimes, and deterred the type of criminal conduct Alvarez had
    displayed in the past. Alvarez argues that the district court failed to give
    adequate weight to his post-sentencing conduct and to the fact that he received
    a departure based on substantial assistance. However, the applicable policy
    statement merely states that a comparable reduction in light of a substantial-
    assistance departure “may be appropriate,” U.S.S.G. § 1B1.10(b)(2)(B), and the
    commentary states that a “court may consider post-sentencing conduct,”
    § 1B1.10(b)(2)(B), comment. (n.1(B)(iii)). The district court has “no obligation”
    to reduce a sentence. United States v. Evans, 
    587 F.3d 667
    , 673 (5th Cir. 2009).
    Additionally, Alvarez contends that the district court failed to give
    adequate weight to the need to avoid unwarranted sentencing disparities given
    that the Western District of Texas has granted 82 percent of requested
    sentence reductions “under the amended drug guidelines.” However, it is the
    disparity between similarly situated defendants that Congress seeks to avoid.
    See 18 U.S.C. § 3553(a)(6). “Congress intended that certain disparities be
    caused by application of the federal guidelines, and a sentencing disparity
    2
    Case: 15-50761     Document: 00513637979     Page: 3   Date Filed: 08/15/2016
    No. 15-50761
    intended by Congress is not unwarranted.” United States v. Candia, 
    454 F.3d 468
    , 476 (5th Cir. 2006) (internal quotation marks and citations omitted).
    Alvarez’s offense level was based on the quantity of heroin for which he
    was held responsible, and a defendant with a similar record who was convicted
    of similar conduct would face imprisonment for 210 to 262 months. Alvarez’s
    guideline range of 110 to 137 months was lower because of his acceptance of
    responsibility and substantial assistance, so the disparity between his
    sentence and that of a similarly situated defendant was intended by Congress
    and therefore warranted. See United States v. Duhon, 
    541 F.3d 391
    , 397 (5th
    Cir. 2008).
    As Alvarez has not presented any argument to undermine the
    discretionary decision to deny his § 3582(c)(2) motion, the district court’s order
    is AFFIRMED. See United States v. Henderson, 
    636 F.3d 713
    , 717 (5th Cir.
    2011).
    3
    

Document Info

Docket Number: 15-50761 c-w 15-50917 Summary Calendar

Citation Numbers: 668 F. App'x 79

Judges: Reavley, Owen, Elrod

Filed Date: 8/15/2016

Precedential Status: Non-Precedential

Modified Date: 11/6/2024