     Case: 15-50761      Document: 00513637979         Page: 1    Date Filed: 08/15/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                     No. 15-50761                               FILED
                                   c/w No. 15-50917                       August 15, 2016
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ALFREDO ALVAREZ,

                                                 Defendant-Appellant



                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 1:12-CR-234-7


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
       Alfredo Alvarez, federal prisoner # 99551-280, appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction of his sentence for
conspiracy to distribute a controlled substance, as well as the denial of his
motion to reconsider. However, he did not file his motion to reconsider within
the 14-day period for seeking an appeal from the denial of his § 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 15-50761

motion. Rule 4(b)’s time limit is not jurisdictional, United States v. Martinez,
496 F.3d 387, 388-89 (5th Cir. 2007), and may be forfeited if not asserted. See
Eberhart v. United States, 546 U.S. 12, 19 (2005) (explaining that a
nonjurisdictional, “inflexible claim-processing rule” can be forfeited but
assures relief when properly asserted). Although the government did not
participate in the proceeding in the district court, it has not raised the
untimeliness of the motion to reconsider in this court and has thus forfeited
any challenge thereto. See id.
      The district court denied Alvarez’s § 3582(c)(2) motion, despite
concluding that Alvarez was “technically eligible for a reduction,” because it
determined that his 110-month sentence was reasonable, protected the public
from his further crimes, and deterred the type of criminal conduct Alvarez had
displayed in the past. Alvarez argues that the district court failed to give
adequate weight to his post-sentencing conduct and to the fact that he received
a departure based on substantial assistance. However, the applicable policy
statement merely states that a comparable reduction in light of a substantial-
assistance departure “may be appropriate,” U.S.S.G. § 1B1.10(b)(2)(B), and the
commentary states that a “court may consider post-sentencing conduct,”
§ 1B1.10(b)(2)(B), comment. (n.1(B)(iii)). The district court has “no obligation”
to reduce a sentence. United States v. Evans, 587 F.3d 667, 673 (5th Cir. 2009).
      Additionally, Alvarez contends that the district court failed to give
adequate weight to the need to avoid unwarranted sentencing disparities given
that the Western District of Texas has granted 82 percent of requested
sentence reductions “under the amended drug guidelines.” However, it is the
disparity between similarly situated defendants that Congress seeks to avoid.
See 18 U.S.C. § 3553(a)(6). “Congress intended that certain disparities be
caused by application of the federal guidelines, and a sentencing disparity



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                                  No. 15-50761

intended by Congress is not unwarranted.” United States v. Candia, 454 F.3d
468, 476 (5th Cir. 2006) (internal quotation marks and citations omitted).
      Alvarez’s offense level was based on the quantity of heroin for which he
was held responsible, and a defendant with a similar record who was convicted
of similar conduct would face imprisonment for 210 to 262 months. Alvarez’s
guideline range of 110 to 137 months was lower because of his acceptance of
responsibility and substantial assistance, so the disparity between his
sentence and that of a similarly situated defendant was intended by Congress
and therefore warranted. See United States v. Duhon, 541 F.3d 391, 397 (5th
Cir. 2008).
      As Alvarez has not presented any argument to undermine the
discretionary decision to deny his § 3582(c)(2) motion, the district court’s order
is AFFIRMED. See United States v. Henderson, 636 F.3d 713, 717 (5th Cir.
2011).




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