     Case: 19-10316      Document: 00515215579         Page: 1    Date Filed: 11/26/2019




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

                                                                               FILED
                                      No. 19-10316                     November 26, 2019
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


                                                 Plaintiff-Appellee

v.

DAVID LEE BREWER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:17-CV-286


Before SMITH, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       David Lee Brewer, federal prisoner # 49004-177, pleaded guilty to one
count of bank robbery, in violation of 18 U.S.C. § 2113(a), and he was sentenced
to 188 months of imprisonment. He now requests a certificate of appealability
(COA) to appeal the denial of his motion to vacate, correct, or set aside his
sentence pursuant to 28 U.S.C. § 2255 and the denial of his motion for
reconsideration.     He contends that he should not have received a career



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10316     Document: 00515215579        Page: 2   Date Filed: 11/26/2019


                                     No. 19-10316

offender enhancement because an offense under § 2113(a) does not qualify as
a crime of violence under U.S.S.G. § 4B1.1 and U.S.S.G. § 4B1.2.
      Brewer’s notice of appeal was untimely as to the denial of his § 2255
motion. See 28 U.S.C. § 2107(b)(1); FED. R. APP. P. 4(a)(1)(B)(i). Accordingly,
we lack jurisdiction to consider the denial of that motion.          See Hamer v.
Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017); Bowles v. Russell,
551 U.S. 205, 214 (2007); Archer v. Lynaugh, 821 F.2d 1094, 1096 (5th Cir.
1987). Because the notice of appeal was filed within 60 days of the denial of
his motion for reconsideration, Brewer’s appeal was timely as to that motion.
See FED. R. APP. P. 4(a)(1)(B)(i).
      To obtain a COA, Brewer must make a substantial showing of the denial
of a constitutional right. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537
U.S. 322, 327 (2003).     To meet that standard, he must demonstrate that
“reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Slack
v. McDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation marks and
citation omitted) (quote at 484); see also Hernandez v. Thaler, 630 F.3d 420,
428 (5th Cir. 2011). Brewer fails to make this showing.
      The appeal is DISMISSED IN PART for lack of jurisdiction, and the
motion for a COA is DENIED.




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