     Case: 13-40962      Document: 00512591146         Page: 1    Date Filed: 04/09/2014




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

                                    No. 13-40962                                 FILED
                                  Summary Calendar                            April 9, 2014
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAMES DARRELL LISTER, JR., also known as Wee Wee,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:07-CR-95-6


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       James Darrell Lister, Jr., federal prisoner # 14979-078, was convicted by
guilty plea of possession with intent to distribute cocaine base and was
sentenced to 188 months of imprisonment and four years of supervised release.
He now requests leave to proceed in forma pauperis (IFP) on appeal from the
district court’s denial of his 18 U.S.C. § 3582(c)(2) motion, in which he sought
a sentence reduction pursuant to the Fair Sentencing Act of 2010 (FSA) and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40962     Document: 00512591146      Page: 2    Date Filed: 04/09/2014


                                  No. 13-40962

Amendment 750 to the Sentencing Guidelines. By moving to proceed IFP,
Lister challenges the district court’s certification that the appeal was not taken
in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      The Government has filed a motion to summarily dismiss this appeal
due to Lister’s failure to file a timely notice of appeal or, in the alternative, to
summarily affirm the district court’s order or, in the further alternative, to
grant it a 30-day extension to file an appellate brief. The district court’s order
denying § 3582(c)(2) relief was entered on July 9, 2013. Lister’s notice of
appeal, dated August 25, 2013, was not only untimely but also beyond the time
during which the district court could have extended the time for filing a notice
of appeal. See FED. R. APP. P. 4(b)(1)(A)(i), (b)(4). Although Rule 4(b) is not
jurisdictional, a defendant may not have his untimeliness disregarded when
the Government objects. Eberhart v. United States, 546 U.S. 12, 18 (2005);
United States v. Garcia-Cabrera, 472 F. App’x 340, 341 (5th Cir. 2012).
      Accordingly, the Government’s motion for summary dismissal is
GRANTED, and the appeal is DISMISSED as untimely. The Government’s
alternative motions for summary affirmance and an extension of time to file a
brief are DENIED. Lister’s motion to proceed IFP is DENIED.




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