USA v. Alvin Thomas, III, No. 13-30276 (5th Cir. 2014)

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Case: 13-30276 Document: 00512634192 Page: 1 Date Filed: 05/19/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 13-30276 Summary Calendar United States Court of Appeals Fifth Circuit FILED May 19, 2014 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ALVIN THOMAS, III, also known as Fot Thomas, Defendant-Appellant Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:06-CR-294-10 Before REAVLEY, JONES, and PRADO, Circuit Judges. PER CURIAM: * Alvin Thomas, III, federal prisoner # 29962-034, was sentenced to 180 months in prison after he pleaded guilty to distributing 50 grams or more of cocaine base. He appeals the district court s denial of his motion to reconsider his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence. He also moves for the appointment of appellate counsel. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-30276 Document: 00512634192 Page: 2 Date Filed: 05/19/2014 No. 13-30276 As a threshold matter, the Government contends that Thomas s notice of appeal is untimely. The notice was stamped filed beyond the applicable 14-day period, and Thomas did not demonstrate that it was timely delivered to prison officials or deposited in the prison mail system. See FED. R. APP. P. 4(b)(1)(A)(i), (c). We ordinarily would remand for an excusable neglect or good cause determination, but we need not do so because the appeal is without merit. See United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000). Thomas s § 3582(c)(2) motion was based on the Fair Sentencing Act of 2010 (FSA) and the corresponding amendments to the Sentencing Guidelines. We may affirm the district court s judgment on any basis supported by the record. See United States v. Clay, 408 F.3d 214, 218 n.7 (5th Cir. 2005). Because Thomas was sentenced on January 7, 2008, or before the FSA s effective date of August 3, 2010, the FSA is not retroactively applicable to him. See Dorsey v. United States, 132 S. Ct. 2321, 2335-36 (2012); United States v. Kelly, 716 F.3d 180, 181 (5th Cir.), cert. denied, 134 S. Ct. 439 (2013). The district court s judgment is AFFIRMED. Thomas s motion for the appointment of appellate counsel is DENIED. 2