     Case: 15-40269      Document: 00513244972         Page: 1    Date Filed: 10/23/2015




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

                                                                                 FILED
                                    No. 15-40269                           October 23, 2015
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DANIEL PATRICK,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:06-CR-228-7


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Daniel Patrick, federal prisoner # 49584-179, appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion for reduction of his sentence for
possession of 100 kilograms or more of marijuana with intent to distribute.
Patrick argues that he is entitled to a reduction in his sentence pursuant to
Amendment 782 to the Sentencing Guidelines because he was sentenced under
U.S.S.G. § 2D1.1 and his guidelines sentence range was reduced by


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40269

Amendment 782. He requests the appointment of counsel for the purposes of
oral argument.
      Patrick’s notice of appeal was filed, at the earliest, one day late. See FED.
R. APP. P. 4(b)(1)(A)(i). We ordinarily construe an untimely notice of appeal
filed within the time for seeking an extension as a request for such an extension
and will remand for a good cause or excusable neglect determination. See
United States v. Golding, 739 F.2d 183, 184 (5th Cir. 1984). In criminal cases,
the time limit set forth in Rule 4(b)(1)(A) is mandatory, but it is not
jurisdictional and can be waived. United States v. Martinez, 496 F.3d 387, 388–
89 (5th Cir. 2007) (citing Bowles v. Russell, 551 U.S. 205, 207–14 (2007)). In
this case, the Government has expressly waived “whatever benefit it might
derive from Patrick’s failure to file a timely notice of appeal.” Accordingly, we
may consider the merits of the appeal without remanding for a good cause or
excusable neglect determination. See id. at 388–89.
      The district court had before it Patrick’s arguments in favor of a sentence
reduction; the original and reduced guidelines ranges; a synopsis of Patrick’s
behavior while incarcerated, both good and bad; and the information from
Patrick’s original sentencing, including his long criminal history. Patrick’s
original sentence was within both the original and reduced guidelines ranges.
The district court, implicitly finding that Patrick was eligible for a reduction,
denied Patrick’s motion as a matter of discretion, specifically citing the 18
U.S.C. § 3553(a) sentencing factor of protection of the public. While the district
court did not discuss the Section 3553(a) factors further, the arguments were
presented to the district court, and “although it did not discuss them, we can
assume that it considered them.” United States v. Evans, 587 F.3d 667, 673
(5th Cir. 2009) (citation and quotation marks omitted). The district court was
not required to give a detailed explanation of its decision to deny Patrick’s



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                                 No. 15-40269

motion. See id. at 674. Contrary to Patrick’s argument, he was not entitled to
a sentence reduction just because he was eligible for one. See id. at 673 & n.9.
Given Patrick’s criminal history, prison disciplinary record, and that Patrick’s
original sentence was within his lowered guidelines range, Patrick has not
shown that the district court abused its discretion by denying the motion. See
United States v. Smith, 595 F.3d 1322, 1323 (5th Cir. 2010); United States v.
Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995).
      Patrick has no statutory or constitutional right to appointed counsel for
the purpose of this appeal. See Whitebird, 55 F.3d at 1011. Additionally, he
has failed to show that the interests of justice require the appointment of
counsel. See United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008).
      AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.




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