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

Clerk
No. 15-10331

2

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 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 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 
No. 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).

Coleman 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 minimum 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. Because our decision in 

Arnold is unpublished, it is not binding precedent and the Government’s 

motion for summary affirmance is DENIED. See 5TH CIR. 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.