     Case: 16-11478       Document: 00514107287         Page: 1     Date Filed: 08/08/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                              United States Court of Appeals

                                     No. 16-11478
                                                                                       Fif h Circuit

                                                                                     FILED
                                   Summary Calendar                             August 8, 2017
                                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                                            Clerk


                                                  Plaintiff - Appellee

v.

JIMMY WAYNE MACK,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-93-1


Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
       Jimmy Wayne Mack pleaded guilty, pursuant to an agreement, to
conspiring to distribute and possess, with intent to distribute, 50 grams or
more of methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B);
he was sentenced to 240 months’ imprisonment. Mack appeals, pro se, the
district court’s denying his motion for a sentence reduction under 18 U.S.C.
§ 3582(c)(2), as well as his motion for reconsideration.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-11478

      Drug Enforcement Administration agents arrested Mack and three other
individuals in Parker County, Texas, after Mack was identified by local law
enforcement as the leader of a drug-tracking operation. Upon execution of the
search warrant for his residence, officers found, inter alia, a make-up bag filled
with methamphetamine, a drug ledger, multiple mobile telephones, a digital
scale, and various drug paraphernalia.
      In the written plea agreement with Mack, the Government stipulated “a
sentence of no greater than twenty (20) years is the appropriate disposition in
this case”. The presentence investigation report (PSR) recommended a total
offense level of 43 based on the advisory Sentencing Guidelines. That level
combined with a criminal history category of IV resulted in a Guidelines range
of life imprisonment, but was revised to 480 months’ imprisonment because
the statutory maximum for his offense was 40 years. Neither Mack nor the
Government objected to the PSR’s Guidelines determinations, but the
Government moved for a downward departure, based on Mack’s substantial
assistance, and to impose the plea agreement’s 20-year sentence.               At
sentencing, the court accepted the plea agreement and granted the downward
departure, but determined a departure below “the agreed sentence” would not
be justified, imposing a sentence of 240 months’ imprisonment, with four years’
supervised release to follow.
      Mack did not directly appeal his sentence; and his 28 U.S.C. § 2255
motion was denied.     His motion for a sentence reduction, pursuant to 18
§ 3582(c)(2), was denied on 8 July 2016, with the court’s ruling a reduction was
not justified because, inter alia, Mack’s plea agreement was binding and his
sentence was already significantly lower than the applicable Guidelines
sentencing range. On 1 August 2016, Mack moved for reconsideration; the
motion was denied.



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                                  No. 16-11478

      As an initial matter, Mack’s motion for reconsideration was filed more
than 14 days after entry of the court’s order denying his § 3582(c)(2) motion.
Therefore, the untimely motion was an unauthorized motion the district court
lacked jurisdiction to entertain. See Fed. R. App. P. 4(b)(1)(A)(i); 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).
      Although Mack’s untimely motion 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 action 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.
      Mack contends the court abused its discretion by arbitrarily denying his
motion for a sentence reduction, filed pursuant to Amendment 782, which
lowered the base-offense levels in the drug-quantity table of Guideline
§ 2D1.1(c). He asserts his co-defendants received the benefit of Amendment
782, and maintains his plea agreement, which called for a sentence of no
greater than 20 years of imprisonment, does not preclude a reduction of his
sentence.
      The decision whether to reduce a sentence under § 3582(c)(2) is reviewed
for abuse of discretion; the interpretation of the Guidelines, de novo; and the
findings of fact, for clear error. United States v. Benitez, 822 F.3d 807, 810–11
(5th Cir. 2016). The judgment may be affirmed on any grounds supported by
the record. United States v. McSween, 53 F.3d 684, 687 n.3 (5th Cir. 1995).
      A court has the discretion to modify a sentence if a defendant “has been
sentenced to a term of imprisonment based on a sentencing range that has



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                                 No. 16-11478

subsequently been lowered by the Sentencing Commission”.             18 U.S.C.
§ 3582(c)(2). A defendant such as Mack, however, who was sentenced pursuant
to a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement may be
eligible for a § 3582(c)(2) reduction only if “the agreement itself employs the
particular Guideline sentencing range applicable to the charged offenses in
establishing the term of imprisonment”. United States v. Freeman, 564 U.S.
522, 540 (2011) (Sotomayor, J., concurring).
      Mack’s Rule 11(c)(1)(C) plea agreement does not call for a sentence
“within a particular Guidelines sentencing range”; provide “for a specific term
of imprisonment—such as a number of months—but also make clear that the
basis for the specified term is a Guidelines sentencing range applicable to the
offense to which the defendant pleaded guilty”; or “explicitly employ a
particular Guidelines sentencing range to establish the term of imprisonment”.
Id. at 538–40 (Sotomayor, J., concurring); see Benitez, 822 F.3d at 811. Neither
is there any indication the district court based its sentencing decision on a
Guideline calculation.    See Benitez, 822 F.3d at 811–12; United States
v. Williams, 609 F.3d 368, 373 (5th Cir. 2010). Accordingly, Mack’s sentence
pursuant to a Rule 11(c)(1)(C) plea agreement was not based on a sentencing
range that was lowered by Amendment 782, and the court did not abuse its
discretion in declining to reduce his sentence under § 3582(c)(2). See Benitez,
822 F.3d at 811–12.
      AFFIRMED.




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