United States v. James Lister, Jr.

Case: 13-40962 Document: 00512591146 Page: 1 Date Filed: 04/09/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-40962 FILED
Summary Calendar April 9, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAMES DARRELL LISTER, JR., also known as Wee Wee,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:07-CR-95-6
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
James Darrell Lister, Jr., federal prisoner # 14979-078, was convicted by
guilty plea of possession with intent to distribute cocaine base and was
sentenced to 188 months of imprisonment and four years of supervised release.
He now requests leave to proceed in forma pauperis (IFP) on appeal from the
district court’s denial of his 18 U.S.C. § 3582(c)(2) motion, in which he sought
a sentence reduction pursuant to the Fair Sentencing Act of 2010 (FSA) and
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40962 Document: 00512591146 Page: 2 Date Filed: 04/09/2014
No. 13-40962
Amendment 750 to the Sentencing Guidelines. By moving to proceed IFP,
Lister challenges the district court’s certification that the appeal was not taken
in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
The Government has filed a motion to summarily dismiss this appeal
due to Lister’s failure to file a timely notice of appeal or, in the alternative, to
summarily affirm the district court’s order or, in the further alternative, to
grant it a 30-day extension to file an appellate brief. The district court’s order
denying § 3582(c)(2) relief was entered on July 9, 2013. Lister’s notice of
appeal, dated August 25, 2013, was not only untimely but also beyond the time
during which the district court could have extended the time for filing a notice
of appeal. See FED. R. APP. P. 4(b)(1)(A)(i), (b)(4). Although Rule 4(b) is not
jurisdictional, a defendant may not have his untimeliness disregarded when
the Government objects. Eberhart v. United States, 546 U.S. 12, 18 (2005);
United States v. Garcia-Cabrera, 472 F. App’x 340, 341 (5th Cir. 2012).
Accordingly, the Government’s motion for summary dismissal is
GRANTED, and the appeal is DISMISSED as untimely. The Government’s
alternative motions for summary affirmance and an extension of time to file a
brief are DENIED. Lister’s motion to proceed IFP is DENIED.
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