United States v. Christopher Alexander

Case: 17-10725 Document: 00514312516 Page: 1 Date Filed: 01/18/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-10725
Fifth Circuit
FILED
Summary Calendar January 18, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
CHRISTOPHER ALEXANDER,
Defendant−Appellant.
Appeals from the United States District Court
for the Northern District of Texas
No. 5:01-CR-60-1
Before SMITH, WIENER, and HAYNES, Circuit Judges.
PER CURIAM: *
Christopher Alexander, federal prisoner #25906-177, moves to proceed
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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.
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No. 17-10725
in forma pauperis (“IFP”) on appeal to challenge the denial of his motion re-
questing reconsideration of the denial of his 18 U.S.C. § 3582(c)(2) motion for
a sentence reduction. The district court denied the motion for reconsideration
and certified that the appeal was not taken in good faith. By moving for IFP
status, Alexander is challenging the district court’s certification. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Alexander’s motion for reconsideration was filed more than 14 days after
the entry of the order denying his § 3582(c)(2) motion, but because the applic-
able time limit is not jurisdictional and may be waived, the district court had
jurisdiction to consider the motion for reconsideration. See United States v.
Collins, __ F. App’x __, 2017 WL 5013046, at *1 (5th Cir. Nov. 2, 2017); see also
United States v. Martinez, 496 F.3d 387, 388 (5th Cir. 2007). Similarly, al-
though it is not clear on the current record whether Alexander filed a timely
notice of appeal after the denial of his motion for reconsideration, there is no
jurisdictional impediment for us to consider his appeal even if it was untimely.
We therefore pretermit any issue concerning the timeliness of the motion for
reconsideration or his notice of appeal from the denial of that motion. See
Martinez, 496 F.3d at 398.
We review the denial of a motion for reconsideration and the denial of a
§ 3582(c)(2) for an abuse of discretion. United States v. Evans, 587 F.3d 667,
672 (5th Cir. 2009); United States v. Rabhan, 540 F.3d 344, 346 (5th Cir. 2008).
Alexander contends that the district court abused its discretion in denying his
§ 3582(c)(2) motion by (1) committing procedural error in failing to calculate
the applicable guideline range in light of Amendments 706, 750, and 782 to the
Sentencing Guidelines and (2) concluding that the relevant sentencing factors
weighed against a sentence reduction. The record does not support Alexander’s
averments. Furthermore, to the extent that he also seeks to challenge his
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No. 17-10725
original sentence, such a challenge is not cognizable in a § 3582(c)(2) proceed-
ing. See Dillon v. United States, 560 U.S. 817, 825−26, 831 (2010).
Alexander has failed to show that the instant appeal involves legal points
arguable on their merits. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). Accordingly, the motion for IFP status is DENIED, and the appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
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