      Case: 19-10907     Document: 00515238227         Page: 1    Date Filed: 12/16/2019




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

                                                                                   FILED
                                    No. 19-10907                           December 16, 2019
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

v.

PABLO CANTU HERNANDEZ, also known as Paul Hernandez, also known
as Ledubijen Hernandez, also known as Viejo, also known as Mr. H.,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:17-CR-42-3


Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM: *
       Pablo Cantu Hernandez, federal prisoner # 56212-177, moves for leave
to proceed in forma pauperis (IFP) on appeal from the district court’s denial of
his   motions     for   compassionate       release,   a   sentence     reduction,           and
reconsideration. Because the applicable time limit for noticing an appeal in
this case is not jurisdictional, we pretermit the issue of the timeliness of Cantu



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10907      Document: 00515238227     Page: 2   Date Filed: 12/16/2019


                                   No. 19-10907

Hernandez’s notice of appeal. See United States v. Martinez, 496 F.3d 387, 388-
89 (5th Cir. 2007); United States v. Lewis, 921 F.2d 563, 564 (5th Cir. 1991).
        A movant seeking IFP status must show both financial eligibility and a
nonfrivolous issue for appeal. See Carson v. Polley, 689 F.2d 562, 586 (5th
Cir. 1982). Even if he satisfies the financial eligibility requirement, Cantu
Hernandez has not shown a nonfrivolous appellate issue. See id. He makes no
argument concerning the denial of his motion for compassionate release.
Instead, he argues only that he is entitled to a sentence reduction pursuant to
the safety-valve provision of the First Step Act of 2018, Pub. L. No. 115-391,
§ 402, 132 Stat. 5194, 5221 (2018), and that, contrary to the district court’s
findings, this provision applies to him.
        The relevant provision of the First Step Act applies “only to a conviction
entered on or after the date of enactment”—December 2018. § 402(b), 132 Stat.
at 5221; see United States v. Hegwood, 934 F.3d 414, 416 (5th Cir.), cert. denied,
140 S. Ct. 285 (2019). The district court entered the criminal judgment against
Cantu Hernandez long before December 2018, and there was no appeal. The
safety-valve provision at § 402 thus does not apply under any construction of
the term “conviction entered” as used in the statute. See § 402(b), 132 Stat. at
5221.
        Accordingly, the motion to proceed IFP is DENIED, and the appeal is
DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983); 5TH CIR. R. 42.2.




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