UNITED STATES v. BAHENA (2018)

Robert Bahena, Jr., federal prisoner # 84965-280, appeals the denial of his 18 U.S.C. § 3582(c) motion for reduction of sentence after his conviction and 262-month sentence for possession with intent to distribute methamphetamine. After filing a notice of appeal, Bahena filed a motion to dismiss the appeal without prejudice, asserting that he wished to pursue relief under 28 U.S.C. § 2255 rather than the instant appeal.

Bahena filed his notice of appeal after the expiration of the time for filing a timely appeal, and on remand, the district court determined that he had not shown good cause or excusable neglect entitling him to an extension to file an appeal. See Fed. R. App. P. 4(b)(1)(A)(i), (b)(4); United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000). Accordingly, his appeal is DISMISSED as untimely. Bahena’s motion for dismissal of his appeal without prejudice is DENIED. See Fed. R. App. P. 42(b); 5th Cir. R. 42.1 & 42.4.

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PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.