USA v. Milton Carbe

Filing

UNPUBLISHED OPINION FILED. [15-20716 Affirmed] Judge: EHJ, Judge: JLW, Judge: EBC. Mandate pull date is 02/02/2017; granting motion for summary affirmance filed by Appellee USA [8175086-3]; denying motion to dismiss appeal as frivolous filed by Appellee USA [8175086-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8175086-4] [15-20716]

Case: 15-20716

Document: 00513832898

Page: 1

Date Filed: 01/12/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-20716
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
January 12, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MILTON EARL CARBE,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:01-CR-337-1
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *

Milton Earl Carbe, federal prisoner # 66325-079, appeals the district
court’s order granting his motion to reduce his sentence pursuant to 18 U.S.C.
§ 3582(c)(2) and its order denying his motion for reconsideration. Carbe was
found guilty of conspiracy to possess with intent to distribute cocaine (Count
One) and possession with intent to distribute cocaine (Count Two), and he was
originally sentenced to life in prison as to Count One and to a concurrent 480-

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Document: 00513832898

Page: 2

Date Filed: 01/12/2017

No. 15-20716
month term of imprisonment as to Count Two. In its August 14, 2015 order,
the district court reduced Carbe’s sentence to 405 months of imprisonment on
both counts.
The Government has filed a motion to dismiss the appeal as frivolous or,
alternatively, a motion for summary affirmance. In the event that the motions
are denied, the Government requests a 30-day extension to file a merits brief.
Summary affirmance is proper where, among other instances, “the position of
one of the parties is clearly right as a matter of law so that there can be no
substantial question as to the outcome of the case.” Groendyke Transport, Inc.
v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
As an initial matter, Carbe’s assertion that he was not given timely
notice of the district court’s grant of his motion to reduce his sentence was not
raised in his motion for reconsideration and, thus, is raised for the first time
on appeal and will not be considered. See Stewart Glass & Mirror, Inc. v. U.S.
Auto Glass Disc. Ctrs., Inc., 200 F.3d 307, 316-17 (5th Cir. 2000). Nonetheless,
the assertion is belied by the record as the docket sheet reflects that the parties
were notified of the district court’s order.
We agree with the Government that Carbe’s notice of appeal, dated
December 2, 2015, was not timely as to the August order granting his motion
to reduce his sentence. Although Federal Rule of Appellate Procedure 4(b) is
not jurisdictional, a defendant may not have his untimeliness disregarded
when the Government timely objects, as is the case here. See Eberhart v.
United States, 546 U.S. 12, 18 (2005); United States v. Hernandez-Gomez, 795
F.3d 510, 511 (5th Cir. 2015). Nor can we ignore that the Government has
timely objected to the untimeliness of Carbe’s motion for reconsideration filed
in the district court.

As such, the Government’s motion for summary

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No. 15-20716
affirmance is GRANTED. The Government’s alternative motions for dismissal
as frivolous and for an extension of time to file a brief are DENIED.

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