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United States v. Jimenez ( 2021 )


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  • Case: 20-51024      Document: 00515921889           Page: 1     Date Filed: 07/01/2021
United States Court of Appeals
for the Fifth Circuit                               United States Court of Appeals
Fifth Circuit
FILED
July 1, 2021
No. 20-51024
Summary Calendar                        Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jesus Jimenez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:14-CR-173-1
Before Dennis, Southwick, and Engelhardt, Circuit Judges.
Per Curiam:*
Jesus Jimenez appeals the district court’s denial of his motion for a
sentence reduction pursuant to
    18 U.S.C. § 3582
    (c)(1)(A)(i) and the First
Step Act. In response, the Government moves for the dismissal of the appeal
as untimely or, alternatively, for an extension of time to file its brief.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-51024      Document: 00515921889           Page: 2    Date Filed: 07/01/2021
No. 20-51024
Jimenez failed to timely file his notice of appeal within 14 days after
the entry of the order denying his § 3582(c)(1)(A)(i) motion. See Fed.
R. App. P. 4(b)(1)(A)(i); see also United States v. Chambliss,
    948 F.3d 691
    ,
692 (5th Cir. 2020) (stating that § 3582(c)(1)(A)(i) is a part of the First Step
Act); United States v. Hegwood,
    934 F.3d 414
    , 418 (5th Cir.) (indicating that
First Step Act motions are comparable to § 3582(c)(2) motions), cert. denied,
    140 S. Ct. 285
     (2019); United States v. Alvarez,
    210 F.3d 309
    , 310 (5th Cir.
2000) (stating that a § 3582(c)(2) motion is a step in a criminal proceeding
and applying the notice-of-appeal deadline for criminal appeals). He likewise
failed to file either his notice of appeal or his motion for leave to proceed in
forma pauperis on appeal within the 30-day period for requesting an
extension of the appeal period due to excusable neglect or for good cause. See
Fed. R. App. P. 4(b)(4); see also United States v. Garcia-Paulin,
    627 F.3d 127
    , 130 n.1 (5th Cir. 2010); United States v. Golding,
    739 F.2d 183
    , 184 (5th
Cir. 1984).    Finally, Jimenez has otherwise failed to show that the
untimeliness of his notice of appeal should be disregarded. See Fed.
R. App. P. 26(b)(1); Nutraceutical Corp. v. Lambert,
    139 S. Ct. 710
    , 714-15
(2019).
While not jurisdictional, the time limits for filing a notice of appeal in
a criminal case are “mandatory claims-processing rules.” United States v.
Pesina-Rodriguez,
    825 F.3d 787
    , 788 (5th Cir. 2016). Where, as here, the
untimeliness of a notice of appeal is properly invoked in a criminal case, the
appeal is foreclosed. See
    id.
     Accordingly, the Government’s motion to
dismiss the appeal as untimely is GRANTED, the Government’s
alternative motion for an extension of the briefing period is DENIED as
moot, and this appeal is DISMISSED.
2