USA v. Robert Bahena, Jr., No. 17-50775 (5th Cir. 2018)

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Case: 17-50775 Document: 00514755628 Page: 1 Date Filed: 12/11/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17-50775 United States Court of Appeals Fifth Circuit FILED UNITED STATES OF AMERICA, December 11, 2018 Lyle W. Cayce Clerk Plaintiff-Appellee v. ROBERT BAHENA, JR., Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 7:16-CR-21-1 Before JONES, ELROD, and ENGELHARDT, Circuit Judges. PER CURIAM: * 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. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 17-50775 Document: 00514755628 Page: 2 Date Filed: 12/11/2018 No. 17-50775 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. 2

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