     Case: 13-30276      Document: 00512634192         Page: 1    Date Filed: 05/19/2014




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

                                    No. 13-30276                                   FILED
                                  Summary Calendar                             May 19, 2014
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ALVIN THOMAS, III, also known as Fot Thomas,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:06-CR-294-10


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Alvin Thomas, III, federal prisoner # 29962-034, was sentenced to 180
months in prison after he pleaded guilty to distributing 50 grams or more of
cocaine base. He appeals the district court’s denial of his motion to reconsider
his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence. He also moves for
the appointment of appellate counsel.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-30276     Document: 00512634192     Page: 2   Date Filed: 05/19/2014


                                  No. 13-30276

      As a threshold matter, the Government contends that Thomas’s notice of
appeal is untimely. The notice was stamped filed beyond the applicable 14-day
period, and Thomas did not demonstrate that it was timely delivered to prison
officials or deposited in the prison mail system.          See FED. R. APP. P.
4(b)(1)(A)(i), (c). We ordinarily would remand for an excusable neglect or good
cause determination, but we need not do so because the appeal is without
merit. See United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000).
      Thomas’s § 3582(c)(2) motion was based on the Fair Sentencing Act of
2010 (FSA) and the corresponding amendments to the Sentencing Guidelines.
We may affirm the district court’s judgment on any basis supported by the
record. See United States v. Clay, 408 F.3d 214, 218 n.7 (5th Cir. 2005).
Because Thomas was sentenced on January 7, 2008, or before the FSA’s
effective date of August 3, 2010, the FSA is not retroactively applicable to him.
See Dorsey v. United States, 132 S. Ct. 2321, 2335-36 (2012); United States v.
Kelly, 716 F.3d 180, 181 (5th Cir.), cert. denied, 134 S. Ct. 439 (2013).
      The district court’s judgment is AFFIRMED. Thomas’s motion for the
appointment of appellate counsel is DENIED.




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