     Case: 12-40285       Document: 00512139360         Page: 1     Date Filed: 02/08/2013




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

                                                                            FILED
                                                                         February 8, 2013
                                     No. 12-40285
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

OSVALDO YOVANI CASTILLO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:10-CR-15-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Osvaldo Yovani Castillo, federal prisoner # 16215-078, pleaded guilty to
possession with intent to distribute five kilograms or more of cocaine. He was
sentenced to 120 months of imprisonment and five years of supervised release.
Castillo filed a motion to compel the Government to file a motion for reduction
of sentence pursuant to Federal Rule of Criminal Procedure 35(b). The district
court denied Castillo’s 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-40285      Document: 00512139360      Page: 2   Date Filed: 02/08/2013

                                   No. 12-40285

      On appeal, Castillo asserts that his motion filed in the district court was
intended to be a 28 U.S.C. § 2255 motion. He asserts that he intended to allege
that counsel was ineffective for failing to file a direct appeal and that his
sentence is improper.
      Castillo’s claims are unavailing. Castillo’s motion filed in the district court
only argues that he is entitled to a reduction in his sentence pursuant to Rule
35(b) because he provided substantial assistance to the Government. Castillo’s
motion does not allege any constitutional claim concerning the validity of his
conviction or sentence or a claim concerning his past or present desire to file a
direct appeal. See Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000); United
States v. Guerra, 94 F.3d 989, 995 (5th Cir. 1996).             Even with liberal
construction, there was no indication that Castillo’s intent was to file a § 2255
motion and not a motion to compel the Government to file a Rule 35(b) motion.
      Additionally, Castillo’s appellate brief does not set forth any legal
arguments or authority or factual analysis challenging the district court’s denial
of his motion to compel the Government to file a Rule 35(b) motion. By failing
to set forth and brief any issues relating to the district court’s ruling on this
motion, Castillo has waived review of any such claims. See United States v.
Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000).
      The Government’s motion for summary affirmance is GRANTED, and the
judgment of the district court is AFFIRMED. The Government’s alternative
motion for an extension of time in which to file a brief is DENIED as
unnecessary.




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