     Case: 08-41350     Document: 00511057695          Page: 1    Date Filed: 03/22/2010




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

                                                  FILED
                                                                           March 22, 2010
                                     No. 08-41350
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

v.

JESUS RODRIGUEZ-FLORES,

                                                   Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 2:08-CR-00051-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Jesus Rodriguez-Flores (Rodriguez) pleaded guilty to illegal reentry into
the United States. On May 1, 2008, the district court sentenced Rodriguez to 50
months of imprisonment, to be followed by three years of supervised release.
        On November 29, 2008, Rodriguez mailed a motion to the district court,
denominated as a “Motion to Correct Final Sentence Pursuant to 18 [U.S.C.]
§ 3742.” In the motion, Rodriguez argued that his sentence was unreasonable,



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-41350

and he asked that, taking various factors into account, the district court reduce
his sentence by up to 18 months.
        On December 4, 2008, the district court construed Rodriguez’s motion as
requesting a reduction of sentence under 18 U.S.C. § 3582(c) and denied relief.
On December 10, 2008, Rodriguez mailed an objection to the district court’s
ruling, arguing that his “Motion to Correct Final Sentence” was actually a notice
of appeal filed in accordance with the requirements of § 3742(d) and that the
district court erroneously construed it as a § 3582(c) motion. On December 18,
2008, the district court rejected Rodriguez’s claim that it had erred in treating
his “Motion to Correct Final Sentence” as seeking relief under § 3582(c) and
ordered the clerk to docket his objection as a notice of appeal from the December
4, 2008 order. The court also granted Rodriguez leave to proceed in forma
pauperis on appeal.
        On appeal, Rodriguez presents several arguments challenging his May 1,
2008 judgment of conviction and sentence. However, the district court properly
found that Rodriguez’s “Motion to Correct Final Sentence” did not evince an
intent to appeal but sought relief from the district court itself. See Mosley v.
Cozby, 813 F.2d 659, 660 (5th Cir. 1987) (holding that a document filed in the
time period for taking an appeal should be construed as a notice of appeal if the
document “clearly evinces an intent to appeal” (internal quotation marks and
citations omitted)). Because Rodriguez has not filed a notice of appeal from the
May 1, 2008 judgment of conviction and sentence as required by F EDERAL R ULE
OF   A PPELLATE P ROCEDURE 4(b), we dismiss his appeal to the extent that he
challenges that judgment. See 5 TH C IR. R. 42.2. Rodriguez’s December 10, 2008
objection likewise failed to “clearly evince[] an intent to appeal” as the “primary
relief sought” from the district court was reconsideration of the motion. See
Mosley, 813 F.2d 660 (determining that a filing did not clearly demonstrate an
intent to appeal where request for leave to appeal is secondary to request for
reconsideration).

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                                 No. 08-41350

      Even if Rodriguez’s objection were construed as a timely notice of appeal
from the December 4, 2008 order, he has failed to brief any argument
challenging the denial of his request for a sentence reduction. Although pro se
briefs are afforded liberal construction, Haines v. Kerner, 404 U.S. 519, 520
(1972), even pro se litigants must brief arguments in order to preserve them.
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Therefore, to the extent
Rodriguez appeals the December 4, 2008 denial of his “Motion to Correct Final
Sentence,” we dismiss his appeal. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987) (holding that the failure to
identify error in the district court’s analysis is the same as if the appellant had
not appealed the judgment); 5 TH C IR. R. 42.2.
      Because this case does not present exceptional circumstances, we deny
Rodriguez’s motion for appointment of counsel. See Ulmer v. Chancellor, 691
F.2d 209, 212 (5th Cir. 1982).
      APPEAL DISMISSED; MOTION DENIED.




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