United States v. Mario Trevino

Case: 18-40214 Document: 00514786877 Page: 1 Date Filed: 01/08/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-40214 FILED
Summary Calendar January 8, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARIO ALBERTO TREVINO, also known as Grunon,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:11-CR-1667-2
Before DAVIS, HAYNES, and HO, Circuit Judges.
PER CURIAM: *
Mario Alberto Trevino, federal prisoner # 00822-379, appeals the denial
of his 18 U.S.C. § 3582(c) motion for reduction of sentence after his conviction
and 135-month sentence for conspiracy to possess with intent to distribute
more than 1,000 kilograms of marijuana and money laundering. He argues
that the district court abused its discretion in denying his § 3582(c) motion
because it failed to follow the two-step process outlined in Dillon v. United
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40214 Document: 00514786877 Page: 2 Date Filed: 01/08/2019
No. 18-40214
States, 560 U.S. 817, 827 (2010). The Government seeks the dismissal of the
appeal because Trevino failed to file a timely notice of appeal.
The record supports the Government’s contention. Trevino filed his
notice of appeal after the expiration of the time for filing a timely appeal and
beyond the time during which the district court could have granted him an
extension upon a showing of either excusable neglect or good cause. See FED.
R. APP. P. 4(b)(1)(A)(i), (b)(4); United States v. Alvarez, 210 F.3d 309, 310 (5th
Cir. 2000). While the untimely filing of a notice of appeal in a criminal case is
not jurisdictional, see United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir.
2007), this court will enforce the mandatory time limit by dismissing the
appeal where, as here, the Government timely raises the issue. See United
States v. Hernandez-Gomez, 795 F.3d 510, 511 (5th Cir. 2015).
Accordingly, Trevino’s appeal is DISMISSED as untimely. His motion
for leave to file a supplemental brief is GRANTED.
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