United States v. Cydric Coleman

817 F.3d 907, 2016 U.S. App. LEXIS 5954, 2016 WL 1273234

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 31, 2016
• Docket: 15-10331
• Status: Unpublished

Opinion

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)® (Count Two), conspiracy to maintain 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)® (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 affir-mance. 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 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, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007).

Coleman also contends that the district court erred in failing to consider Alleyne v. United States, - U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (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 eletiients of his § 924(c)(l)(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 Fed.Appx. 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 affir-mance is DENIED. See 5th Cib. 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 Al-leyne does not affect the district court’s application of § 924(c)(l)(C)(i) because the enhancement is “based on a prior conviction, not because of some other fact.” Arnold, 598 Fed.Appx. at 299. Further, we have held that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (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 PART. The' Government’s alternative motion for an extension of time in which to file a brief is DENIED as unnecessary.