United States v. Posada ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20281
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO JAY POSADA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(H-91-CR-0027-3)
December 9, 1999
Before POLITZ, HIGGINBOTHAM, and WIENER, Circuit Judges.
PER CURIAM:*
Francisco Jay Posada appeals the denial of his third motion for
reconsideration of his motion for modification of his sentence under 18 U.S.C.
§ 3582(c)(2). The sentence was imposed following his conviction for aiding and
abetting the distribution of over five kilograms of cocaine. Posada did not file a
timely notice of appeal of the denial of his motion.1 It would be futile to remand
this case to the district court for a determination whether there was excusable
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1
Fed.R.App.P. 4(b).
neglect in Posada’s filing the late notice of appeal2 because even if there is
excusable neglect, and the notice of appeal from the order denying Posada’s third
motion for reconsideration is deemed timely, we would be compelled to dismiss
this matter. The district court did not have jurisdiction to entertain Posada’s motion
for reconsideration because the motion itself was untimely filed.3 The district court
appropriately should have denied Posada’s motion for lack of jurisdiction.
As the district court lacked jurisdiction to consider Posada’s motion for
reconsideration in the first instance, this appeal from the district court’s denial of
that motion must be dismissed as frivolous.4 We caution Posada that any additional
frivolous appeals filed by him or on his behalf will invite the imposition of the full
panoply of sanctions. Posada should review any pending appeals to ensure that
they do not raise arguments that are patently frivolous.
Appeal DISMISSED.
2
United States v. Golding, 739 F.2d 183 (5th Cir. 1984).
3
United States v. Cook, 670 F.2d 46 (5th Cir. 1982).
4
United States v. McEwen, No. 99-30157 (5th Cir. Oct. 18, 1999) (unpublished); see
also Howard v. King, 707 F.2d 215 (5th Cir. 1983).
2