     Case: 18-41118      Document: 00515239454         Page: 1    Date Filed: 12/17/2019




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

                                    No. 18-41118
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                    December 17, 2019
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk


                                                 Plaintiff-Appellee

v.

OMAR MONTOYA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:12-CR-614-9


Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Omar Montoya, federal prisoner # 12928-379, has filed a motion for leave
to proceed in forma pauperis (IFP) on appeal from the denial of his motion for
a sentence reduction under 18 U.S.C. § 3582(c)(2) based on Amendment 782 to
the Sentencing Guidelines. The district court determined that Montoya was
eligible for a sentence reduction under Amendment 782 but that the 28 U.S.C.
§ 3553(a) factors did not warrant the reduction.                  It denied Montoya’s


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-41118

IFP motion and certified that his appeal was not taken in good faith. By
moving for IFP status, Montoya is challenging the district court’s certification.
See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      Although Montoya’s notice of appeal was untimely, the time limit for
filing a notice of appeal in a criminal case is not jurisdictional and may be
waived. United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007). We
therefore pretermit the issue of the timeliness of the notice of appeal. See id.
at 389.
      Montoya contends that the district court abused its discretion in denying
his § 3582(c)(2) motion. The district court correctly recognized that despite
Montoya’s eligibility for a sentence reduction, it was under no obligation to
grant him one. See United States v. Evans, 587 F.3d 667, 673 (5th Cir. 2009).
The district court considered Montoya’s arguments in favor of a sentence
reduction but concluded, as matter of discretion, that a lower sentence was not
warranted. In doing so, the district court properly considered the applicable
18 U.S.C. § 3553(a) factors, including Montoya’s history and characteristics
and the need to afford adequate deterrence to criminal conduct.               See
§ 3553(a)(1), § 3553(a)(2)(A)-(B); § 3582(c)(2); U.S.S.G. § 1B1.10, p.s., comment.
(n.1(B)(i)). The district court also properly considered Montoya’s post-
sentencing conduct. See § 1B1.10, p.s., comment. (n.1(B)(iii)). Montoya has
not shown that the district court based its decision on an error of law or on a
clearly erroneous assessment of the evidence. See United States v. Henderson,
636 F.3d 713, 717 (5th Cir. 2011); United States v. Larry, 632 F.3d 933, 936
(5th Cir. 2011).
      Montoya has failed to show that the district court arguably abused its
discretion in denying his § 3582(c)(2) motion, and the instant appeal does not
involve legal points arguable on their merits. See Howard, 707 F.2d at 220.



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                                No. 18-41118

Accordingly, we deny Montoya’s motion for leave to proceed IFP on appeal, and
we dismiss his appeal as frivolous. See Baugh, 117 F.3d at 202 & n.24; see also
5TH CIR. R. 42.2.
      MOTION DENIED; APPEAL DISMISSED.




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