IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10372

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSEPH CLEVELAND THIBODEAUX,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:06-CR-24-2

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges

PER CURIAM:

*

Joseph Cleveland Thibodeaux, federal prisoner # 34603-177, moved for and

received an order from the district court reducing his sentence under 18 U.S.C.

§ 3582(c)(2). Thibodeaux nonetheless appeals, arguing first that the district

court should have awarded him an even greater sentence reduction and second

that the district court should not have denied as moot his motion for leave to

proceed in forma pauperis (“IFP”). We dismiss as untimely the portion of this

appeal that pertains to the first issue. As to the second issue, we affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

December 16, 2010

Lyle W. Cayce

Clerk

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.

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No. 09-10372

In March 2008 Thibodeaux filed a pro se motion to reduce his sentence

under § 3582(c)(2) and a motion for leave to proceed IFP in the district court.

The district court granted the § 3582(c)(2) motion on May 12, 2008. More than

ten months later, on March 20, 2009, the district court entered an order denying

as moot Thibodeaux’s motion for leave to proceed IFP. Thibodeaux filed his

notice of appeal on April 1, 2009. The notice stated that Thibodeaux was

appealing the district court’s order of March 20, 2009. Later, Thibodeaux filed

a motion for appointment of counsel on appeal. The district court denied the

motion without prejudice to Thibodeaux’s right to renew the motion before this

court.

Thibodeaux’s notice of appeal is untimely as to the district court’s May 12,

2008 order granting his § 3582(c)(2) motion. See FED. R. APP. P. 4(b)(1)(A)(i);

United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000) (per curiam). The

time-limit for filing a notice of appeal in a criminal case is not jurisdictional, so

it can be waived. United States v. Martinez, 496 F.3d 387, 388–89 (5th Cir.

2007). But unless waived, it is mandatory. See id. There is no waiver here. The

Government properly asserted the untimeliness of the notice of appeal in its

motion to dismiss. See United States v. Sealed Appellant, 304 F. App’x 282, 284

(5th Cir. 2008). Therefore, the Government’s motion to dismiss is granted, and

the appeal is dismissed in part. The Government’s alternative motions for

summary affirmance or for an extension of time to file an appellate brief are

denied as moot.

Thibodeaux’s notice of appeal is timely as to the district court’s March 20,

2009 order denying as moot his motion for leave to proceed IFP in the district

court. However, Thibodeaux declined to raise any challenge to that order in his

opening brief. He has thus abandoned the issue. See United States v. Reyes, 300

F.3d 555, 558 n.2 (5th Cir. 2002); see also FED. R. APP. P. 28(a)(9). The district

court’s denial of Thibodeaux’s motion for leave to proceed IFP is therefore

affirmed.

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No. 09-10372

Finally, Thibodeaux also argues that the district court erred in denying his

motion for appointment of counsel on appeal. However, that issue is not

properly before this court because Thibodeaux did not file a notice of appeal from

that denial, which postdated the notice of appeal he previously filed. Even if the

issue were before the court, the district court committed no error. Thibodeaux

has no statutory or constitutional right to appointed counsel in a § 3582(c)(2)

proceeding. See United States v. Hereford, 385 F. App’x 366, 368 (5th Cir. 2010)

(per curiam); United States v. Whitebird, 55 F.3d 1007, 1010–11 (5th Cir. 1995).

DISMISS IN PART; AFFIRM IN PART; GRANT MOTION TO DISMISS;

DENY MOTION FOR SUMMARY AFFIRMANCE OR FOR EXTENSION OF

TIME.

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Case: 09-10372 Document: 00511323487 Page: 3 Date Filed: 12/16/2010