     Case: 16-41286      Document: 00513882221         Page: 1    Date Filed: 02/21/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 16-41286                                   FILED
                                  Summary Calendar                          February 21, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

HECTOR GOMEZ-VASQUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:12-CR-1039-1


Before CLEMENT, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Hector Gomez-Vasquez, federal prisoner # 64042-179, has filed a motion
for leave to proceed in forma pauperis (IFP) on appeal from the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction based on
Amendment 782 to the Sentencing Guidelines and his motions for
reconsideration of that order. The district court denied Gomez-Vasquez’s IFP
motion and certified that the appeal was not taken in good faith. By moving


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41286

for IFP status, Gomez-Vasquez is challenging the district court’s certification.
See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      Gomez-Vasquez’s motions for reconsideration were filed more than 14
days after the entry of the district court’s order denying his § 3582(c)(2) motion.
Thus, the untimely motions were, in essence, meaningless, unauthorized
motions which the district court lacked jurisdiction to entertain. See United
States v. Early, 27 F.3d 140, 142 (5th Cir. 1994); United States v. Cook, 670
F.2d 46, 48-49 (5th Cir. 1982); FED. R. APP. P. 4(b)(1)(A)(i).
      Although Gomez-Vasquez’s untimely motions for reconsideration did not
toll the time for filing a notice of appeal from the underlying denial of
§ 3582(c)(2) relief, cf. United States v. Brewer, 60 F.3d 1142, 1143-44 (5th Cir.
1995), the time limit 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 (5th Cir. 2007). We therefore pretermit the issue of the timeliness of the
notice of appeal. See id. at 389.
      Gomez-Vasquez contends that the district court abused its discretion in
denying his § 3582(c)(2) motion. The district court correctly recognized that
despite Gomez-Vasquez’s eligibility for a sentence reduction, it was under no
obligation to grant him one. See United States v. Evans, 587 F.3d 667, 673 (5th
Cir. 2009). The district court considered Gomez-Vasquez’s arguments in favor
of a sentence reduction but concluded, as matter of discretion, that a lower
sentence was not warranted. In doing so, the district court properly considered
the applicable 18 U.S.C. § 3553(a) factors, including Gomez-Vasquez’s history
and characteristics, the need to afford adequate deterrence to criminal conduct,
and the need to protect the public from further criminal conduct.               See
§ 3553(a)(1), (a)(2)(B)-(C); § 3582(c)(2); U.S.S.G. § 1B1.10, comment. (n.1(B)(i)).
The district court also properly considered Gomez-Vasquez’s post-sentencing



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                                 No. 16-41286

conduct. See § 1B1.10, comment. (n.1(B)(iii)). Gomez-Vasquez has not shown
that the district court based its decision on an error of law or on a clearly
erroneous assessment of the evidence. See United States v. Henderson, 636
F.3d 713, 717 (5th Cir. 2011).
      Because the district court lacked jurisdiction to consider Gomez-
Vasquez’s untimely motions for reconsideration and Gomez-Vasquez has failed
to show that the district court abused its discretion in denying his § 3582(c)(2)
motion, the instant appeal does not involve legal points arguable on their
merits. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly,
Gomez-Vasquez’s IFP motion is DENIED, and his appeal is DISMISSED as
frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.




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