     Case: 08-11096 Document: 00511315095 Page: 1 Date Filed: 12/08/2010




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

                                                 FILED
                                                                          December 8, 2010
                                     No. 08-11096
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MICHAEL LEWIS, also known as MD,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:06-CR-70-1


Before KING, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
       Michael Lewis, federal prisoner # 35452-177, is serving a 240-month term
of imprisonment for distributing cocaine base.               Lewis filed a motion for a
reduction of his sentence under 18 U.S.C. § 3582(c)(2) based on the United
States Sentencing Commission’s retroactive amendments to the base offense
levels for crack cocaine offenses. He appeals the district court’s denial of that
motion and of his motion for reconsideration of the decision.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-11096 Document: 00511315095 Page: 2 Date Filed: 12/08/2010

                                  No. 08-11096

      Lewis did not file a notice of appeal within ten days after the district court
denied his § 3582(c)(2) motion or within ten days after the district court denied
his motion for reconsideration. See F ED. R. A PP. P. 4(b)(1)(A)(i) (2008); F ED. R.
A PP. P. 26(a)(2) (2008); United States v. Alvarez, 210 F.3d 309, 310 (5th Cir.
2000) (noting that a § 3582(c)(2) motion is a step in a criminal case). Lewis did
request an extension of time to file his notice of appeal. However, the district
court denied the motion because it was filed beyond the 10-day period for filing
a notice of appeal and beyond the 30-day period in which Lewis could have
obtained such an extension. More than four months after the district court
denied his motion for reconsideration, Lewis filed an untimely notice of appeal
in this court.
      Although Rule 4(b) is not jurisdictional, a defendant is not entitled to have
his untimeliness disregarded. United States v. Leijano-Cruz, 473 F.3d 571, 574
(5th Cir. 2006). Accordingly, Lewis’s appeal is dismissed as frivolous. See 5 TH
C IR. R. 42.2.
      APPEAL DISMISSED.




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