     Case: 17-40276      Document: 00514424435         Page: 1    Date Filed: 04/11/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit


                                      No. 17-40276
                                                                             FILED
                                                                         April 11, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

OSVALDO ALIPIZAR,

                                                 Defendant−Appellant.




                  Appeals from the United States District Court
                       for the Southern District of Texas
                                No. 2:16-CV-333
                               No. 2:14-CR-575-5




Before SMITH, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM: *

       Osvaldo Alipizar, federal prisoner #06902-104, was convicted of



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-40276     Document: 00514424435      Page: 2   Date Filed: 04/11/2018


                                  No. 17-40276

conspiracy to possess with intent to distribute more than five kilograms of
cocaine and was sentenced to 87 months of imprisonment and three years of
supervised release. He appeals the denial of his motion to reduce his sentence
under 18 U.S.C. § 3582(c)(2) and also moves for a certificate of appealability
(“COA”) to appeal the denial of his 28 U.S.C. § 2255 motion to vacate, correct,
or set aside the sentence. Additionally, he moves for leave to proceed in forma
pauperis (“IFP”).

      Alipizar avers that U.S.S.G. Amendment 794 is retroactively applicable
because it resolves a circuit split and is a “clarifying amendment.” He does not
challenge the district court’s construction of this argument as a motion for a
sentence reduction under § 3582(c)(2). Although Alipizar’s appeal of the denial
of his § 3582(c)(2) motion was untimely, the deadline for filing a notice of
appeal in a criminal case is not jurisdictional and may be waived. See United
States v. Martinez, 496 F.3d 387, 388−89 (5th Cir. 2007). Accordingly, there is
no jurisdictional impediment to reaching the merits of the appeal. See id.
at 389.

      A district court may reduce the term of imprisonment of a defendant who
was sentenced “based on a sentencing range that has subsequently been low-
ered by the Sentencing Commission.” § 3582(c)(2). In considering a reduction
under § 3582(c)(2), a court should first determine whether the defendant is
eligible for a reduction and the extent of the reduction that is authorized by
the amendment; if the defendant is eligible, the court should consider the
18 U.S.C. § 3553(a) factors to see whether the circumstances justify any reduc-
tion. Dillon v. United States, 560 U.S. 817, 826−27 (2010). We review the
denial of a § 3582(c)(2) motion for abuse of discretion, and we review the district
court’s interpretations of the Sentencing Guidelines de novo. United States v.
Henderson, 636 F.3d 713, 717 (5th Cir. 2011).


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                                 No. 17-40276

      Because Amendment 794 is not among the retroactive guideline amend-
ments set forth in U.S.S.G. § 1B1.10(d), it has not been made retroactively
applicable. See Dillon, 560 U.S. at 825−26. Moreover, Amendment 794 did not
lower the guideline range under which Alipizar was sentenced. See U.S.S.G.
app. C, amend. 794, at 114-17 (Supp. Nov. 1, 2016). As a result, the amend-
ment does not provide a basis for relief under § 3582(c)(2).

      Alipizar maintains that counsel was ineffective for failing to move to
delay sentencing until the effective date of Amendment 794. He theorizes that
he was a paid employee who did not have a proprietary interest in the conspir-
acy. To obtain a COA, Alipizar must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). A movant satisfies this standard “by demonstrating
that jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S.
at 327; see Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      Alipizar has not met that standard.       Accordingly, the denial of the
§ 3582(c)(2) motion is AFFIRMED, and Alipizar’s motions for a COA and for
leave to proceed IFP are DENIED.




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