United States v. Duran ( 2022 )

Case: 21-50249 Document: 00516153348 Page: 1 Date Filed: 01/04/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 4, 2022
No. 21-50249
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Cleto Samuel Duran,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:03-CR-144-3
Before Southwick, Graves, and Costa, Circuit Judges.
Per Curiam: *
Cleto Samuel Duran, federal prisoner # 28996-180, moves for leave to
proceed in forma pauperis (IFP) on appeal from the denial of his motion for
a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and § 404 of the
First Step Act of 2018. That denial was based on the determination that
Duran was ineligible for such relief, and the district court denied Duran leave
*
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opinion should not be published and is not precedent except under the limited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.
Case: 21-50249 Document: 00516153348 Page: 2 Date Filed: 01/04/2022
No. 21-50249
to proceed IFP on that same basis. Further, the district court denied Duran’s
motion under Federal Rule of Appellate Procedure 4(b)(4) for an extension
of time to appeal, and it construed Duran’s extension motion as an untimely
notice of appeal.
A timely notice of appeal is not jurisdictional in this criminal case. See
United States v. Martinez, 496 F.3d 387, 388 (5th Cir. 2007). We need not
consider the timeliness of the notice of appeal from the denial of a sentence
reduction or whether Duran’s extension motion should have been granted
because, as explained below, we conclude that Duran’s appeal from the
denial of his motion for a sentence reduction is frivolous. See id. at 388-89.
We construe Duran’s IFP motion as a challenge to the district court’s
certification that his appeal from the denial of a sentence reduction was not
taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
However, Duran has effectively abandoned that challenge by failing to
address the district court’s certification decision, or the underlying denial of
a sentence reduction, in either his IFP motion or his appellate brief. See
Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987); see also Baugh, 117 F.3d at 202 (“[T]he motion must be directed solely
to the trial court’s reasons for the certification decision.”). As such, Duran’s
appeal from the denial of a sentence reduction is frivolous. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983).
We therefore DENY Duran’s motion to proceed IFP and DISMISS
the appeal as frivolous. See Baugh, 117 F.3d at 202 & n.24; Howard, 707 F.2d
at 220; 5th Cir. R. 42.2.
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