United States v. Alvarez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-20883
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROGELIO ALVAREZ,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-95-CR-314-7
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April 14, 2000

Before WIENER, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:

Rogelio Alvarez, a federal prisoner (# 00518-111), appeals

from the district court’s denial of his motion for reduction of

sentence, filed pursuant to 18 U.S.C. § 3582(c)(2). Alvarez’s

notice of appeal was filed 11 days after the district court

entered judgment.

Two of this court’s sister circuits have held that a

§ 3582(c)(2) motion is not a civil postconviction action but a

“step in a criminal case,” the denial of which must be appealed

within 10 days from the entry of judgment. United States v. Ono,

72 F.3d 101, 102-03 (9th Cir. 1995); United States v. Petty, 82
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F.3d 809, 810 (8th Cir. 1996); FED. R. APP. P. 4(b). As the Ninth

Circuit stated, § 3582 is a criminal provision because, inter

alia, it “governs the imposition and subsequent modification of a

sentence of imprisonment,” and it refers to the statutes and

rules governing the imposition of sentences. See Ono, 72 F.3d at

102.

We agree with the reasoning of these decisions and adopt it

as our own. The 10-day limit for filing a notice of appeal in a

criminal case is “‘mandatory and jurisdictional.’” United States

v. Coscarelli, 149 F.3d 342, 343 (5th Cir. 1998) (quoting United

States v. Robinson, 361 U.S. 220, 229 (1960)).

Rule 4(b)(4), FED. R. APP. P., allows the district court to

grant an additional 30 days in which to file a notice of appeal

upon a showing of “excusable neglect” or “good cause.” The

filing of an untimely notice of appeal within the 30-day period

is customarily treated by this court in a criminal case as a

motion for a determination whether excusable neglect or good

cause entitles the defendant to an extension of time to appeal.

United States v. Golding, 739 F.2d 183, 184 (5th Cir. 1984).

Such a remand would be futile in this case because Alvarez’s

appeal is frivolous. He argues that he is entitled to a sentence

reduction because Amendment 484 of the Sentencing Guidelines

requires the district court to recalculate the amount of

methamphetamine attributable to him so as to exclude “waste

materials” and “intermediary solutions.” Section 3582(c)(2)

permits a district court to reduce a prison term when it is based

on a sentencing range that has “subsequently been lowered” by an
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amendment to the Guidelines. See United States v. Gonzalez-

Balderas, 105 F.3d 981, 982 (5th Cir. 1997). Amendment 484

became effective on November 1, 1993, more than four years before

Alvarez was sentenced. See U.S.S.G., App. C, Amendm. 484.

Alvarez’s § 3582(c)(2) motion thus is not based on a sentencing

range that has “subsequently” been lowered by the Sentencing

Commission.

APPEAL DISMISSED FOR LACK OF JURISDICTION.