     Case: 16-50097      Document: 00514109282         Page: 1    Date Filed: 08/09/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                      United States Court of Appeals

                                    No. 16-50097
                                                                               Fifth Circuit


                                  Summary Calendar                           FILED
                                                                        August 9, 2017
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk

                                                 Plaintiff-Appellee

v.

ALBERTO CEJA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:08-CR-55-1


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
       Alberto Ceja, federal prisoner # 11260-280, moves to proceed in forma
pauperis (“IFP”) on appeal. He seeks to challenge 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 Ceja’s IFP motion and certified that the appeal
was not taken in good faith. By moving for IFP status, Ceja is challenging the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50097

district court’s certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997).
      Ceja’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.        These
motions were thus unauthorized ones that 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 Ceja’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 any issue concerning the timeliness of the
appeal of the underlying order. See id. at 389.
      We review the district court’s decision whether to reduce a sentence
under § 3582(c)(2) for abuse of discretion and its interpretation of the
guidelines de novo. United States v. Henderson, 636 F.3d 713, 717 (5th Cir.
2011). Amendment 782 retroactively lowered most drug-related base offense
levels in U.S.S.G. § 2D1.1(c) by two levels and lowers Ceja’s total offense level
to 35. When combined with his criminal history category of I, the amended
guideline range is 188 to 235 months. Ceja was sentenced to 180 months. The
district court could not further reduce the sentence because Ceja did not receive
a downward departure from a government motion to reflect his substantial
assistance to authorities. See U.S.S.G. § 1B1.10(b)(2)(A), (B), comment. (n.3).
      Because the district court lacked jurisdiction to consider Ceja’s untimely
motions for reconsideration and Ceja has failed to show that the district court



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                                 No. 16-50097

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, Ceja’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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