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United States v. Omar Valdez ( 2017 )


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  •      Case: 16-51099      Document: 00513963649         Page: 1    Date Filed: 04/21/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-51099                                   FILED
Summary Calendar                             April 21, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
OMAR DIEGO VALDEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:10-CR-124-8
Before OWEN, ELROD, and COSTA, Circuit Judges.
PER CURIAM: *
Omar Diego Valdez, federal prisoner # 55957-280, moves for leave to
proceed in forma pauperis (IFP) on appeal. He argues that the district court,
in granting his 18 U.S.C. § 3582(c)(2) motion, erroneously failed to order more
than a seven-month reduction of his sentence and that he should have received
the same 30-month credit he received at his original sentencing.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-51099     Document: 00513963649      Page: 2   Date Filed: 04/21/2017
No. 16-51099
Valdez did not file a notice of appeal within the applicable 14-day period.
See FED. R. APP. P. 4(b)(1)(A). His untimely notice, however, was filed within
the time for seeking an extension of the appeal period. See FED. R. APP.
P. 4(b)(4). Because Valdez’s appeal is frivolous, it would be futile to remand
for the district court to determine whether Valdez’s late filing was due to
excusable neglect or good cause. See United States v. Alvarez,
    210 F.3d 309
    ,
310 (5th Cir. 2000). Accordingly, as there is no jurisdictional impediment to
considering the merits and because the Government has raised no objection,
we pretermit whether Valdez timely noticed his appeal. See United States v.
Martinez,
    496 F.3d 387
    , 388-89 (5th Cir. 2007).
Valdez’s motion to proceed IFP constitutes a challenge to the district
court’s certification that Valdez’s appeal is not taken in good faith. See Baugh
v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997). Our inquiry into Valdez’s good
faith “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).
Valdez has not demonstrated that a nonfrivolous issue for appeal exists
in this case. See
    id. The district 
    court, in granting Valdez’s § 3582(c)(2) motion,
ordered a 151-month prison term, which is the minimum of the amended
guidelines range. Valdez does not assert, and the record does not indicate, that
he originally received a below-guidelines sentence pursuant to a government
motion to reflect his substantial assistance to authorities. Accordingly, the
district court could not have further reduced Valdez’s sentence, and there was
no abuse of discretion. See U.S.S.G. § 1B1.10(b)(2)(A), (B) & comment. (n.3)
(2015); United States v. Contreras,
    820 F.3d 773
    , 774-75 (5th Cir. 2016); United
States v. Henderson,
    636 F.3d 713
    , 717 (5th Cir. 2011).
2
Case: 16-51099    Document: 00513963649    Page: 3   Date Filed: 04/21/2017
No. 16-51099
Because the appeal lacks arguable merit and is thus frivolous, Valdez’s
motion for leave to proceed IFP on appeal is DENIED, and his appeal is
DISMISSED as frivolous. See
    Baugh, 117 F.3d at 202 
    n.24;
    Howard, 707 F.2d at 220
    ; 5TH CIR. R. 42.2.
3