United States v. Cabrera

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 29, 2025
• Docket: 24-40346
• Status: Unpublished

Opinion

Case: 24-40346 Document: 44-1 Page: 1 Date Filed: 01/29/2025

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 24-40346 FILED January 29, 2025 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee,

versus

Alejandro Cabrera,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:10-CR-140-11 ______________________________

Before Richman, Douglas, and Ramirez, Circuit Judges. Per Curiam: * Alejandro Cabrera, federal prisoner # 88036-179, appeals the district court’s decision denying his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction based on Amendment 821 to the Sentencing Guidelines. Although the Government contends that we should dismiss because Cabrera did not timely file his notice of appeal, we decline to do so; the notice was filed within

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 24-40346 Document: 44-1 Page: 2 Date Filed: 01/29/2025

No. 24-40346

thirty days of the expiration of the fourteen-day filing deadline, and the district court, by granting Cabrera leave to proceed in forma pauperis on appeal, implicitly found excusable neglect. See Fed. R. App. P. 4(b)(1)(A)(i), (4); United States v. Golding, 739 F.2d 183, 184 (5th Cir. 1984); United States v. Quimby, 636 F.2d 86, 89 (5th Cir. Unit A Feb. 1981). None of Cabrera’s eight criminal history points were assessed for his having committed the instant offense while under any criminal justice sentence, see U.S.S.G. § 4A1.1(e), and his receipt of those points disqualifies him from receiving a reduction under U.S.S.G. § 4C1.1. See § 4C1.1(a)(1). Therefore, because he is not eligible for a sentence reduction under Amendment 821, the district court did not err by denying Cabrera § 3582(c)(2) relief. See United States v. Calton, 900 F.3d 706, 710 (5th Cir. 2018). AFFIRMED.