     Case: 17-50775      Document: 00514755628         Page: 1    Date Filed: 12/11/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 17-50775
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                               December 11, 2018
                                                                           Lyle W. Cayce
                                                 Plaintiff-Appellee             Clerk

v.

ROBERT BAHENA, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:16-CR-21-1


Before JONES, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Robert Bahena, Jr., federal prisoner # 84965-280, appeals the denial of
his 18 U.S.C. § 3582(c) motion for reduction of sentence after his conviction and
262-month       sentence      for    possession       with     intent     to        distribute
methamphetamine. After filing a notice of appeal, Bahena filed a motion to
dismiss the appeal without prejudice, asserting that he wished to pursue relief
under 28 U.S.C. § 2255 rather than the instant appeal.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50775    Document: 00514755628      Page: 2    Date Filed: 12/11/2018


                                  No. 17-50775

      Bahena filed his notice of appeal after the expiration of the time for filing
a timely appeal, and on remand, the district court determined that he had not
shown good cause or excusable neglect entitling him to an extension to file an
appeal. See FED. R. APP. P. 4(b)(1)(A)(i), (b)(4); United States v. Alvarez, 210
F.3d 309, 310 (5th Cir. 2000). Accordingly, his appeal is DISMISSED as
untimely. Bahena’s motion for dismissal of his appeal without prejudice is
DENIED. See FED. R. APP. P. 42(b); 5TH CIR. R. 42.1 & 42.4.




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