     Case: 15-20716      Document: 00513832898         Page: 1    Date Filed: 01/12/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 15-20716                                 FILED
                                  Summary Calendar                        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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  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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