United States v. Andres Gonzalez

Case: 19-40583 Document: 00515307460 Page: 1 Date Filed: 02/12/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 19-40583
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
February 12, 2020
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
ANDRES GERARDO GONZALEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-2016-1
Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
Andres Gerardo Gonzalez, federal prisoner #28490-379, pleaded guilty
to possession with intent to distribute 500 grams or more of methamphetamine
and was sentenced to 210 months of imprisonment. Gonzalez now moves for
leave to proceed in forma pauperis (IFP) on appeal from the district court’s
order denying his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40583 Document: 00515307460 Page: 2 Date Filed: 02/12/2020
No. 19-40583
Although it is not clear whether Gonzalez’s notice of appeal was timely,
the time limit for filing a notice of appeal in a criminal case is not jurisdictional
and may be waived. United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir.
2007). We therefore pretermit the issue whether his notice of appeal was
timely filed. See id. at 389.
By moving for leave to proceed IFP in this court, Gonzalez is challenging
the district court’s ruling that the appeal is not taken in good faith. See Baugh
v. Taylor, 117 F.3d 197 (5th Cir. 1997); United States v. Boutwell, 896 F.2d 884,
889-90 (5th Cir. 1990). In resolving Gonzalez’s challenge, we confine our
analysis of the issue of good faith to asking “whether the appeal involves legal
points arguable on their merits (and therefore not frivolous).” Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citations
omitted).
Gonzalez fails to address the district court’s reasons for its denial of his
§ 3582(c)(2) motion or his IFP motion. An issue must be briefed to be
preserved. FED. R. APP. P. 28(a)(8). Gonzalez does not satisfy this
requirement, as he does not state “the reasons he deserves . . . relief” from the
district court’s IFP ruling. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993);
see Boutwell, 896 F.2d at 890. Because Gonzalez has not shown that he will
raise a nonfrivolous issue on appeal, his motion to appeal IFP is DENIED, and
the appeal is DISMISSED. See Howard, 707 F.2d at 219-20; 5TH CIR. R. 42.2.
2