     Case: 15-10331      Document: 00513446957         Page: 1    Date Filed: 03/31/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-10331
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 31, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

CYDRIC COLEMAN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CR-38-1


Before DAVIS, JONES and GRAVES, Circuit Judges.
PER CURIAM:*
       In 2011, Cydric Coleman, federal prisoner # 37473-177, was convicted by
a jury of conspiracy to distribute and possess with intent to distribute 50 grams
or more of a mixture or substance containing a detectable amount of cocaine
base in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846 (Count One), possession
of a firearm in furtherance of the drug trafficking crime charged in Count One
in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Two), conspiracy to maintain


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10331

drug-involved premises in violation of § 846 and 21 U.S.C. § 856(b) (Count
Three), and possession of a firearm in furtherance of the drug trafficking crime
charged in Count Three in violation of § 924(c)(1)(C)(i) (Count Four). The
district court sentenced him to concurrent terms of 120 months of
imprisonment on Counts One and Three, a consecutive term of 60 months of
imprisonment on Count Two, and a consecutive term of 300 months of
imprisonment on Count Four, for a total of 480 months of imprisonment.
      In February 2013, Coleman filed a 28 U.S.C. § 2255 motion challenging
his conviction and sentence. The district court denied his multiplicity and
ineffective assistance of counsel claims with prejudice. However, the district
court concluded that Coleman was entitled to relief on his claim that he was
eligible for resentencing under the Fair Sentencing Act of 2010. Consequently,
the district court vacated Coleman’s sentence and resentenced him to
concurrent terms of 60 months of imprisonment on Count One and one month
of imprisonment on Count Three, a consecutive term of 60 months of
imprisonment on Count Two, and a consecutive term of 300 months of
imprisonment on Count Four, for a total of 420 months of imprisonment.
      Coleman appeals the sentence imposed on resentencing. He also seeks
to appeal the district court’s partial denial of his § 2255 motion.          The
Government has moved for dismissal and summary affirmance.                In the
alternative, the Government requests an extension of time in which to file a
brief on the merits.
      Coleman contends that the district court erred in denying his ineffective
assistance of counsel claim without conducting an evidentiary hearing. The
Government asserts that we lack jurisdiction to review this issue. Coleman
did not file a timely notice of appeal from the district court’s partial denial of
his § 2255 motion. See FED. R. APP. P. 4(a)(1)(B). Moreover, the documents



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                                 No. 15-10331

filed within the period prescribed by Rule 4(a)(1) did not clearly evince his
intent to appeal the district court’s judgment. See Mosley v. Cozby, 813 F.2d
659, 660 (5th Cir. 1987). Therefore, the Government’s motion to dismiss is
GRANTED, and the appeal is DISMISSED IN PART for lack of jurisdiction.
See Bowles v. Russell, 551 U.S. 205, 214 (2007).
      Coleman also contends that the district court erred in failing to consider
Alleyne v. United States, 133 S. Ct. 2151 (2013), at his resentencing. He argues
that the district court violated his constitutional rights by resentencing him to
a 25-year statutory minimum sentence on Count Four because the elements of
his § 924(c)(1)(C)(i) offense were not submitted to the jury and found beyond a
reasonable doubt.
      The Government asserts that Coleman’s argument is foreclosed by
Arnold v. United States, 598 F. App’x 298, 299 (5th Cir. 2015). Coleman agrees
but seeks to preserve the issue for further review. Because our decision in
Arnold is unpublished, it is not binding precedent and the Government’s
motion for summary affirmance is DENIED. See 5TH CIR. R. 47.5.4; United
States v. Holy Land Found. for Relief & Dev., 445 F.3d 771, 781 (5th Cir. 2006).
      Although our decision in Arnold is not binding precedent, it may be
considered persuasive authority. See Ballard v. Burton, 444 F.3d 391, 401
& n.7 (5th Cir. 2006). In Arnold, we observed that Alleyne does not affect the
district court’s application of § 924(c)(1)(C)(i) because the enhancement is
“based on a prior conviction, not because of some other fact.” Arnold, 598 F.
App’x at 299. Further, we have held that Almendarez-Torres v. United States,
523 U.S. 224 (1998), remains binding precedent post-Alleyne. United States v.
Wallace, 759 F.3d 486, 497 (5th Cir. 2014). Therefore, Coleman’s Alleyne
challenge is unavailing, and the district court’s judgment is AFFIRMED IN




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                                No. 15-10331

PART. The Government’s alternative motion for an extension of time in which
to file a brief is DENIED as unnecessary.




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