### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 10331 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v.
CYDRIC COLEMAN , Defendant

- Appellant

Appeal from the United States District Court for the Northern District of Texas

Before DAVIS, JONES and GRAVES, Circuit Judges. 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)(i) (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)(i) (Count Four)

. The district court sentenced him to concurrent terms of 120 months of United States Court of Appeals Fifth Circuit 

### FILED March 31 , 2016 Lyle W. Cayce ClerkNo. 15

- 10331

2 imprisonment on C ounts 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 c hallenging 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 fo r resentencing under the Fair Sentencing Act of 2010. Consequently,

t he 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 4 2 0 months of imprisonment. Coleman appeals the sentenc e imposed on resentencing . He also seeks to appeal the district c ourt’s p artial denial of his § 2255 motio n. The Government has moved for dismissal and summary affirmance. 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 th is issue. Coleman
did not file a timely notice of appeal from the district court’s partial denial of his § 2255 motion. See F ED

. R. A PP

. 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 dist rict court’s judgment. See Mosley v. Cozby , 813 F.2d 659, 660 (5th Cir. 1987). Therefore, the Government’s motion to dismiss isNo. 15

- 10331

3 GRANTED , and the appeal is DISMISSED IN PART for lack of jurisdiction. See Bowles v. Russell , 551 U.S. 205, 214 (2007). Cole man also contends that the district court erred in failing to consider Alleyne v. United States , 133 S. Ct. 2151 (2013), at his resentencing . He argues that the district court violated his constitutional rights by resentencing him to
a 25

- year statutory m inimum sentence on Count Four because the elements of his § 924(c)(1)(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 F. App’x 298, 299 (5th Cir. 2015). Coleman agrees but seeks to preserve the issue for further review. B ecause our decision in Arnold is unpublished, it is not binding precedent and the Government’s motion for summary affirmance is DENIED

. See 5 TH C IR

. 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 Alleyne does not affect the district court’s application of § 924(c)(1)(C)(i) because the enhancement is “based on a prior conviction, not because of some other fact.” Arnold , 598 F. App’x at 299

. Further, we have held that Almendarez

- Torres v. United States , 523 U.S. 224 (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.