     Case: 17-30125      Document: 00514222720         Page: 1    Date Filed: 11/02/2017




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

                                    No. 17-30125                                FILED
                                  Summary Calendar                       November 2, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DANIEL WAYNE COLLINS,

                                                 Defendant-Appellant

                         ON PETITION FOR REHEARING


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 5:04-CR-50170-4


Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
       Daniel Wayne Collins’s (“Collins”) petition for panel rehearing is
GRANTED, and we withdraw the previous opinion filed in this case on
September 27, 2017 and substitute the following opinion.
       In 2005, Collins pleaded guilty to one charge of conspiring to distribute
methamphetamine and one charge of possession of a firearm in relation to a



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-30125

drug trafficking offense. He was sentenced to serve 168 months in prison on
the former charge, to run consecutively to a 60-month sentence on the latter
charge, as well as five years on supervised release.
      On November 3, 2014, Collins filed a motion to reduce his sentence and
to request counsel. See 18 U.S.C. § 3582(c)(2); Amendment 782. The district
court appointed the Federal Public Defender as counsel for Collins. Defense
counsel filed a memorandum in support of a reduced sentence based on a
retroactive amendment to the sentencing guidelines. The probation office
agreed that Collins should receive the reduced sentence; however, the
Government opposed the sentence reduction.           On February 26, 2016, the
district court denied the motion for sentence reduction. On January 20, 2017,
Collins filed a motion for reconsideration, which the district court denied on
February 7, 2017. He then filed a notice of appeal on February 15.
      I.       ANALYSIS
               A. Motion for Sentence Reduction
      Because Collins’s notice of appeal was filed more than 14 days after the
order denying his motion for sentence reduction, it was untimely. See FED. R.
APP. P. 4(b)(1)(A)(i). Although the time limit in Rule 4(b) is mandatory, it is
not jurisdictional and therefore may be forfeited. United States v. Hernandez-
Gomez, 795 F.3d 510, 511 (5th Cir. 2015); United States v. Martinez, 496 F.3d
387, 388 (5th Cir. 2007) (holding that the Supreme Court’s opinion in Bowles
v. Russell, 1 “establishes that the time limit specified in Rule 4(b)(1)(A) is
mandatory, but not jurisdictional, because it does not derive from a statute”).
Here, the Government’s opening brief expressly objected to the untimely notice
of appeal filed with respect to the denial of the sentence reduction.
Nonetheless, in his petition for panel rehearing, Collins argues that the



      1   551 U.S. 205 (2007).

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Government’s failure to object in the district court forfeited the objection. We
have expressly held that objecting at the time of the Government’s opening
brief is timely. Id. Further, the Supreme Court has explained that when the
Government objects to an untimely filing under Rule 4(b), a “court’s duty to
dismiss the appeal [is] mandatory.” Eberhart v. United States, 546 U.S. 12, 18
(2005). 2 Thus, we dismiss as untimely the appeal from the order denying a
sentence reduction. Id.
              B. Motion for Reconsideration
       With respect to the denial of the motion for reconsideration, the
Government states that Collins timely filed a notice of appeal and that this
“Court can consider that ruling.” Brief at 9 n.4. We agree that the notice of
appeal was timely filed as to the denial of the motion for reconsideration.
However, Collins did not file his motion for reconsideration within 14 days of
the denial of his motion for sentence reduction as required by Rule 4(b). 3 As
explained above, although Rule 4(b) is not jurisdictional, it is mandatory.
Subsequent to this Court’s holding that Rule 4(b) was mandatory but not
jurisdictional, 4 we have been inconsistent in our disposition of untimely filed
motions for reconsideration.          Some opinions have continued to apply pre-
Martinez precedent and hold that untimely motions for reconsideration were
unauthorized and that the district court was without jurisdiction to entertain
the motions—as this panel did in the original opinion in the instant case. See
e.g., United States v. Ceja, 694 F. App’x 361, 361–62 (5th Cir. 2017); United
States v. Gomez-Vasquez, 680 F. App’x 272, 273–74 (5th Cir. 2017). Other


       2  In Eberhart, the Supreme Court was analyzing Rule 37, which was an identical
predecessor to Rule 4(b). United States v. Leijano-Cruz, 473 F.3d 571, 573 n.4 (5th Cir. 2006).
        3 Although there is no statute or rule setting forth the time limits for filing a motion

for reconsideration in a criminal case, it is well settled that “motions for reconsideration are
timely if filed within the time prescribed for noticing an appeal under Fed.R.App.P. 4(b).”
United States v. Brewer, 60 F.3d 1142, 1143 (5th Cir. 1995).
        4 Martinez, 496 F.3d at 388–89.


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opinions have recognized that although Rule 4(b) was not a jurisdictional time
limit on filing the motion for reconsideration, an Appellant “may not have his
untimeliness disregarded when the Government timely objects.” United States
v. Carbe, 672 F. App’x 493, 494 (5th Cir. 2017); see also United States v.
Alvarez, 668 F. App’x 79, 80 (5th Cir. 2016) (stating that Rule 4(b)’s time limit
was not jurisdictional and that the Government had forfeited the objection by
not asserting it).        Although Martinez did not involve a motion for
reconsideration, the opinion was interpreting Rule 4(b), which is the applicable
time limit for filing motions for reconsideration. Brewer, 60 F.3d at 1143.
Thus, Martinez applies to motions for reconsideration. All the above-cited
opinions with respect to motions for reconsideration are unpublished, and thus,
those opinions are not binding precedent. 5            In contrast, we are bound by
Martinez, a published opinion that authoritatively interpreted the Supreme
Court’s opinion in Bowles to hold that the time limit in Rule 4(b) is not
jurisdictional. 496 F.3d at 388–89.
       Accordingly, although the instant motion to reconsider was untimely
filed under Rule 4(b), the district court had jurisdiction to entertain it.
Further, as set forth previously, the Government’s brief expressly stated that
this Court could consider this issue, forfeiting any untimeliness argument with
respect to the motion to reconsider. We therefore turn to the merits of the
claim.
       Collins argues that the district court erred in denying his motion for
reconsideration. We review for abuse of discretion the denial of a motion for
reconsideration. United States v. Rabhan, 540 F.3d 344, 346–47 (5th Cir.
2008). We likewise review for abuse of discretion the decision whether to




       5 In this circuit, unpublished opinions issued on or after January 1, 1996, generally
are not binding precedent, although parties may cite them. 5TH CIR. R. 47.5.4.

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reduce a sentence under § 3582(c)(2). United States v. Evans, 587 F.3d 667,
672 (5th Cir. 2009).
      When addressing a § 3582(c)(2) motion to reduce sentence, the district
court conducts a two-step analysis. Dillon v. United States, 560 U.S. 817, 826
(2010). The court first determines whether the defendant is eligible for a
reduction under U.S.S.G. § 1B1.10. Id. at 827. Here, it was undisputed that
Collins was eligible for the requested sentence reduction.     As for the second
step, once the court determines that a defendant is eligible for a sentence
modification, the court must then consider the applicable § 3553(a) factors to
decide whether a reduction “is warranted in whole or in part under the
particular circumstances of the case.” Id.
      In denying the motion to reduce sentence, the district court ruled as
follows: “The Court finds that a sentence reduction is not appropriate in this
instance due to public safety considerations, namely the defendant’s
association with weapons as set forth in the original Presentence Investigation
Report. See 18 U.S.C. § 3582(c)(2) and U.S.S.G. Section 1B1.10, Application
Note 1(B)(ii).” Collins argues that the district court abused its discretion when
it denied his motion for reconsideration based solely on his prior association
with weapons. However, public safety is a factor to be weighed under § 3553.
See § 3553(a)(2)(c) (requiring the court to consider the need for the sentence “to
protect the public from further crimes of the defendant”).
      As previously set forth, Collins, represented by counsel, filed a
memorandum in support of his request for a reduced sentence.                 The
memorandum argued that Collins did not pose a danger to public safety and
pointed out that he had received no disciplinary reports while incarcerated.
The memorandum further argued that his consecutive sentence for the firearm
offense sufficiently punished him for having a weapon. The memorandum also
reported that he had taken the opportunity to better himself in prison by

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earning his G.E.D. and participating in parenting classes. Collins’s argument
boils down to asserting that the court did not properly balance the sentencing
factors. The argument that the district court did not properly consider and
balance the sentencing factors and that this Court should reevaluate them is
insufficient to show an abuse of discretion. See United States v. Whitebird, 55
F.3d 1007, 1010 (5th Cir. 1995). 6
      II.   CONCLUSION
      For the above reasons, the appeal from the order denying the motion to
reduce Collins’s sentence is DISMISSED, and the appeal from the order
denying reconsideration is AFFIRMED.




      6 Collins also requests this Court to remand the case to a different judge for
resentencing. Because we are not remanding the case, we deny this request as moot.

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