United States v. Aubrey Walker

404 F. App'x 841

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 8, 2010
• Docket: 09-10408
• Status: Unpublished

Opinion

PER CURIAM: *

Aubrey Walker, federal prisoner # 35881-177, pleaded guilty to possession with the intent to distribute methamphetamine. She was sentenced to 151 months in prison. Walker now appeals the denial of her motion to reduce her sentence pursuant to 18 U.S.C. § 3582(c)(2). She avers that she was eligible for a reduction in her sentence following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Walker’s untimely notice of appeal may be deemed a request for an extension of time within which to file her notice of appeal. See Fed. R.App. P. 4(b)(4); see also United States v. Golding, 739 F.2d 183, 184 (5th Cir.1984). Although the district court did not expressly make a finding of good cause or excusable neglect, the district court did grant Walker’s motion for leave to proceed in forma pauperis on appeal, which served as an implicit finding of excusable neglect. See, e.g., United States v. Lister, 53 F.3d 66, 68 (5th Cir.1995). As there is no jurisdictional impediment to reaching the merits of Walker’s appeal, United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir.2007), we decline to dismiss it for failure to file a timely notice of appeal.

Booker does not apply to sentence reductions under § 3582(c)(2). Dillon v. United States, — U.S.-,---, 130 S.Ct. 2683, 2691-94, 177 L.Ed.2d 271 (2010). Accordingly, the Government’s motion for summary affirmance is GRANTED, the motions to dismiss and for an extension of time are DENIED, and the judgment of the district court is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.