     Case: 15-11155      Document: 00513420565         Page: 1    Date Filed: 03/11/2016




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

                                    No. 15-11155                              FILED
                                  Summary Calendar                       March 11, 2016
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

OCARIO RUIZ, also known as Oscar Ruiz,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:10-CR-73-3


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Ocario Ruiz, federal prisoner # 16491-075, is serving a 360-month term
of imprisonment following his conviction for one charge of conspiracy to possess
500 grams or more of cocaine with intent to distribute. He appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction of sentence
based on Amendment 782 to the United States Sentencing Guidelines, which




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-11155     Document: 00513420565     Page: 2   Date Filed: 03/11/2016


                                  No. 15-11155

lowered the base offense levels in the drug quantity table set forth in U.S.S.G.
§ 2D1.1(c).
      We have a duty to examine the basis of our jurisdiction even if we must
do so sua sponte. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). Ruiz’s
notice of appeal was filed almost 11 months after entry of judgment and was
thus untimely. See United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000);
FED. R. APP. P. 4(b)(1)(A). Nonetheless, because this issue is not jurisdictional,
we pretermit it. See United States v. Martinez, 496 F.3d 387, 388 (5th Cir.
2007).
      We review the denial of a § 3582(c)(2) motion for an abuse of discretion.
United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011).            Section
3582(c)(2) grants discretion to a district court to modify a sentence that was
based on a guidelines range that was later lowered by the Sentencing
Commission. § 3582(c)(2).
      The district court determined that Ruiz was ineligible for a § 3582(c)(2)
reduction because his base offense level was not changed by Amendment 782.
Ruiz’s failure to dispute this reasoning has the same effect as if he had not
appealed the district court’s judgment at all. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); see also United States
v. Delgado, 672 F.3d 320, 328 (5th Cir. 2012) (en banc).
      Ruiz’s argument that he was entitled to § 3582(c)(2) relief because he
should not have been sentenced as a career offender, which is raised for the
first time on appeal, is unavailing because claims regarding the validity of the
original conviction and sentence are not cognizable in a § 3582(c)(2) motion.
See United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011).
      AFFIRMED.




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