USA v. Joseph Thibodeaux

Filing

UNPUBLISHED OPINION FILED. [09-10372 Affirmed in Part and Dismissed in Part] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 01/06/2011; denying motion for summary affirmance filed by Appellee USA [6342904-3]; denying motion to extend time to file appellee's brief filed by Appellee USA [6342904-4]; granting motion to dismiss appeal filed by Appellee USA [6342904-2] [09-10372]

USA v. Joseph Thibodeaux 09-10372 Case:

Document: 00511323487 Page: 1 Date Filed: 12/16/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-10372 S u m m a r y Calendar December 16, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J O S E P H CLEVELAND THIBODEAUX, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 5:06-CR-24-2

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges P E R CURIAM:* J ose p h Cleveland Thibodeaux, federal prisoner # 34603-177, moved for and r e c e iv e d an order from the district court reducing his sentence under 18 U.S.C. § 3582(c)(2). Thibodeaux nonetheless appeals, arguing first that the district c o u r t should have awarded him an even greater sentence reduction and second t h a t the district court should not have denied as moot his motion for leave to p r o c e e d in forma pauperis ("IFP"). We dismiss as untimely the portion of this a p p e a l that pertains to the first issue. As to the second issue, we affirm.
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 09-10372 Document: 00511323487 Page: 2 Date Filed: 12/16/2010 No. 09-10372 I n March 2008 Thibodeaux filed a pro se motion to reduce his sentence u n d e r § 3582(c)(2) and a motion for leave to proceed IFP in the district court. The district court granted the § 3582(c)(2) motion on May 12, 2008. More than t e n months later, on March 20, 2009, the district court entered an order denying a s moot Thibodeaux's motion for leave to proceed IFP. Thibodeaux filed his n o tic e of appeal on April 1, 2009. The notice stated that Thibodeaux was a p p e a lin g the district court's order of March 20, 2009. Later, Thibodeaux filed a motion for appointment of counsel on appeal. The district court denied the m o t io n without prejudice to Thibodeaux's right to renew the motion before this c o u r t. Thibodeaux's notice of appeal is untimely as to the district court's May 12, 2 0 0 8 order granting his § 3582(c)(2) motion. See FED. R. APP. P. 4(b)(1)(A)(i); U n ite d States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000) (per curiam). The t im e -lim it for filing a notice of appeal in a criminal case is not jurisdictional, so i t can be waived. United States v. Martinez, 496 F.3d 387, 388­89 (5th Cir. 2 0 0 7 ). But unless waived, it is mandatory. See id. There is no waiver here. The G o v e r n m e n t properly asserted the untimeliness of the notice of appeal in its m o t io n to dismiss. See United States v. Sealed Appellant, 304 F. App'x 282, 284 (5 t h Cir. 2008). Therefore, the Government's motion to dismiss is granted, and t h e appeal is dismissed in part. The Government's alternative motions for s u m m a r y affirmance or for an extension of time to file an appellate brief are d e n ie d as moot. Thibodeaux's notice of appeal is timely as to the district court's March 20, 2 0 0 9 order denying as moot his motion for leave to proceed IFP in the district c o u r t. However, Thibodeaux declined to raise any challenge to that order in his o p e n in g brief. He has thus abandoned the issue. See United States v. Reyes, 300 F .3 d 555, 558 n.2 (5th Cir. 2002); see also FED. R. APP. P. 28(a)(9). The district c o u r t's denial of Thibodeaux's motion for leave to proceed IFP is therefore a ffir m e d . 2

Case: 09-10372 Document: 00511323487 Page: 3 Date Filed: 12/16/2010 No. 09-10372 F in a lly , Thibodeaux also argues that the district court erred in denying his m o t io n for appointment of counsel on appeal. However, that issue is not

p r o p e r ly before this court because Thibodeaux did not file a notice of appeal from t h a t denial, which postdated the notice of appeal he previously filed. Even if the is s u e were before the court, the district court committed no error. Thibodeaux h a s no statutory or constitutional right to appointed counsel in a § 3582(c)(2) p r o c e e d in g . See United States v. Hereford, 385 F. App'x 366, 368 (5th Cir. 2010) (p e r curiam); United States v. Whitebird, 55 F.3d 1007, 1010­11 (5th Cir. 1995). DISMISS IN PART; AFFIRM IN PART; GRANT MOTION TO DISMISS; D E N Y MOTION FOR SUMMARY AFFIRMANCE OR FOR EXTENSION OF T IM E .

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