     Case: 19-60521      Document: 00515199161         Page: 1    Date Filed: 11/14/2019




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

                                                                                FILED
                                    No. 19-60521                        November 14, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

KEON HAWKINS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:17-CR-16-1


Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Keon Hawkins, federal prisoner # 19916-043, pleaded guilty to a bill of
information charging him with possession of a controlled substance with intent
to distribute, in violation of 21 U.S.C. § 841(a)(1), and was sentenced to 240
months of imprisonment. The Government later filed a motion to reduce his
sentence based on substantial assistance pursuant to Federal Rule of Criminal
Procedure 35(b) and 18 U.S.C. § 3553(e). The district court granted the motion


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-60521

and reduced Hawkins’s sentence to 188 months of imprisonment. Hawkins
filed a motion for reconsideration of the district court’s Rule 35(b) order, which
the court denied.
      Hawkins appeals and moves for leave to proceed in forma pauperis (IFP)
following the district court’s certification that the appeal was not taken in good
faith. To proceed IFP, Hawkins must demonstrate financial eligibility and a
nonfrivolous issue for appeal. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir.
1982). We may deny the IFP motion and dismiss the appeal sua sponte if it is
frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997); 5TH
CIR. R. 42.2. An appeal is frivolous if it fails to raise “legal points arguable on
their merits.” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citation omitted). For the reasons that follow, Hawkins
fails to raise a nonfrivolous issue for appeal.
      As an initial matter, we must examine the basis of our jurisdiction, sua
sponte if necessary.    Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).
Hawkins did not file a timely notice of appeal following the district court’s Rule
35(b) order. See FED. R. APP. P. 4(b)(1)(A)(i). His untimely motion following
the district court’s order failed to toll the time for filing a notice of appeal from
that order and did not serve as a proper motion to reconsider. See United
States v. Greenwood, 974 F.2d 1449, 1466 (5th Cir. 1992). Moreover, that
motion cannot be considered as arising under Federal Rule of Civil Procedure
60(b), 28 U.S.C. § 2255, or 28 U.S.C. § 2241. See Reyes-Requena v. United
States, 243 F.3d 893, 904 (5th Cir. 2001); United States v. O’Keefe, 169 F.3d
281, 289 (5th Cir. 1999). Because there was no legal basis for Hawkins’s
motion, it was a “meaningless, unauthorized motion” that had no jurisdictional
basis. United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994). Accordingly,




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                                 No. 19-60521

we lack jurisdiction to consider the denial of that motion. See United States v.
Key, 205 F.3d 773, 774 (5th Cir. 2000).
      We have jurisdiction to consider the Rule 35(b) order despite Hawkins’s
failure to specifically mention it in the notice of appeal because “[f]ailure to
properly designate the order appealed from is not a jurisdictional defect” and
Hawkins’s intent to challenge the Rule 35(b) order is apparent from his brief.
United States v. Rochester, 898 F.2d 971, 976 n.1 (5th Cir. 1990); see FED. R.
APP. P. 3(c)(1)(B). Moreover, because a timely notice of appeal in a criminal
case is not jurisdictional, we have jurisdiction to consider the district court’s
Rule 35(b) order. See United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir.
2007); see also United States v. Santora, 711 F.2d 41, 42 (5th Cir. 1983).
      Hawkins argues that the district court miscalculated the sentencing
reduction.   Rule 35(b) does not provide a particular methodology for
determining the extent of a sentencing reduction, nor does it impose “rigid
procedural requirements on district courts.” United States v. Doe, 932 F.3d
279, 282 (5th Cir. 2019); see FED. R. CRIM. P. 35(b). Further, application of
“[t]he rule is entirely discretionary.”       Doe, 932 F.3d at 282.    Accordingly,
Hawkins has not shown that his appeal raises a nonfrivolous issue based on
his claim that the district court failed to follow his methodology of calculating
his sentencing reduction. See Howard, 707 F.2d at 220.
      Accordingly, the appeal is DISMISSED for lack of jurisdiction in part
and as frivolous in part, and the IFP motion is DENIED.




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