IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30125

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DANIEL WAYNE COLLINS,

Defendant-Appellant

ON PETITION FOR REHEARING

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:04-CR-50170-4

Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges. 

PER CURIAM:*

Daniel Wayne Collins’s (“Collins”) petition for panel rehearing is 

GRANTED, and we withdraw the previous opinion filed in this case on 

September 27, 2017 and substitute the following opinion.

In 2005, Collins pleaded guilty to one charge of conspiring to distribute 

methamphetamine and one charge of possession of a firearm in relation to a

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 2, 2017

Lyle W. Cayce

Clerk

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drug trafficking offense. He was sentenced to serve 168 months in prison on 

the former charge, to run consecutively to a 60-month sentence on the latter

charge, as well as five years on supervised release. 

On November 3, 2014, Collins filed a motion to reduce his sentence and 

to request counsel. See 18 U.S.C. § 3582(c)(2); Amendment 782. The district 

court appointed the Federal Public Defender as counsel for Collins. Defense 

counsel filed a memorandum in support of a reduced sentence based on a 

retroactive amendment to the sentencing guidelines. The probation office 

agreed that Collins should receive the reduced sentence; however, the 

Government opposed the sentence reduction. On February 26, 2016, the 

district court denied the motion for sentence reduction. On January 20, 2017, 

Collins filed a motion for reconsideration, which the district court denied on 

February 7, 2017. He then filed a notice of appeal on February 15.

I. ANALYSIS

A. Motion for Sentence Reduction

Because Collins’s notice of appeal was filed more than 14 days after the 

order denying his motion for sentence reduction, it was untimely. See FED. R.

APP. P. 4(b)(1)(A)(i). Although the time limit in Rule 4(b) is mandatory, it is 

not jurisdictional and therefore may be forfeited. United States v. HernandezGomez, 795 F.3d 510, 511 (5th Cir. 2015); United States v. Martinez, 496 F.3d 

387, 388 (5th Cir. 2007) (holding that the Supreme Court’s opinion in Bowles 

v. Russell,1 “establishes that the time limit specified in Rule 4(b)(1)(A) is 

mandatory, but not jurisdictional, because it does not derive from a statute”). 

Here, the Government’s opening brief expressly objected to the untimely notice 

of appeal filed with respect to the denial of the sentence reduction. 

Nonetheless, in his petition for panel rehearing, Collins argues that the 

 

1 551 U.S. 205 (2007).

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Government’s failure to object in the district court forfeited the objection. We 

have expressly held that objecting at the time of the Government’s opening 

brief is timely. Id. Further, the Supreme Court has explained that when the 

Government objects to an untimely filing under Rule 4(b), a “court’s duty to 

dismiss the appeal [is] mandatory.” Eberhart v. United States, 546 U.S. 12, 18 

(2005).2 Thus, we dismiss as untimely the appeal from the order denying a

sentence reduction. Id. 

B. Motion for Reconsideration

With respect to the denial of the motion for reconsideration, the 

Government states that Collins timely filed a notice of appeal and that this

“Court can consider that ruling.” Brief at 9 n.4. We agree that the notice of 

appeal was timely filed as to the denial of the motion for reconsideration. 

However, Collins did not file his motion for reconsideration within 14 days of

the denial of his motion for sentence reduction as required by Rule 4(b).3 As 

explained above, although Rule 4(b) is not jurisdictional, it is mandatory. 

Subsequent to this Court’s holding that Rule 4(b) was mandatory but not 

jurisdictional,4 we have been inconsistent in our disposition of untimely filed 

motions for reconsideration. Some opinions have continued to apply preMartinez precedent and hold that untimely motions for reconsideration were 

unauthorized and that the district court was without jurisdiction to entertain 

the motions—as this panel did in the original opinion in the instant case. See 

e.g., United States v. Ceja, 694 F. App’x 361, 361–62 (5th Cir. 2017); United 

States v. Gomez-Vasquez, 680 F. App’x 272, 273–74 (5th Cir. 2017). Other 

 

2 In Eberhart, the Supreme Court was analyzing Rule 37, which was an identical 

predecessor to Rule 4(b). United States v. Leijano-Cruz, 473 F.3d 571, 573 n.4 (5th Cir. 2006).

3 Although there is no statute or rule setting forth the time limits for filing a motion 

for reconsideration in a criminal case, it is well settled that “motions for reconsideration are 

timely if filed within the time prescribed for noticing an appeal under Fed.R.App.P. 4(b).” 

United States v. Brewer, 60 F.3d 1142, 1143 (5th Cir. 1995).

4 Martinez, 496 F.3d at 388–89.

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opinions have recognized that although Rule 4(b) was not a jurisdictional time 

limit on filing the motion for reconsideration, an Appellant “may not have his 

untimeliness disregarded when the Government timely objects.” United States 

v. Carbe, 672 F. App’x 493, 494 (5th Cir. 2017); see also United States v. 

Alvarez, 668 F. App’x 79, 80 (5th Cir. 2016) (stating that Rule 4(b)’s time limit 

was not jurisdictional and that the Government had forfeited the objection by 

not asserting it). Although Martinez did not involve a motion for 

reconsideration, the opinion was interpreting Rule 4(b), which is the applicable 

time limit for filing motions for reconsideration. Brewer, 60 F.3d at 1143. 

Thus, Martinez applies to motions for reconsideration. All the above-cited 

opinions with respect to motions for reconsideration are unpublished, and thus, 

those opinions are not binding precedent.5 In contrast, we are bound by 

Martinez, a published opinion that authoritatively interpreted the Supreme 

Court’s opinion in Bowles to hold that the time limit in Rule 4(b) is not 

jurisdictional. 496 F.3d at 388–89.

Accordingly, although the instant motion to reconsider was untimely 

filed under Rule 4(b), the district court had jurisdiction to entertain it. 

Further, as set forth previously, the Government’s brief expressly stated that 

this Court could consider this issue, forfeiting any untimeliness argument with 

respect to the motion to reconsider. We therefore turn to the merits of the 

claim.

Collins argues that the district court erred in denying his motion for 

reconsideration. We review for abuse of discretion the denial of a motion for 

reconsideration. United States v. Rabhan, 540 F.3d 344, 346–47 (5th Cir. 

2008). We likewise review for abuse of discretion the decision whether to 

 

5 In this circuit, unpublished opinions issued on or after January 1, 1996, generally 

are not binding precedent, although parties may cite them. 5TH CIR. R. 47.5.4.

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reduce a sentence under § 3582(c)(2). United States v. Evans, 587 F.3d 667, 

672 (5th Cir. 2009). 

When addressing a § 3582(c)(2) motion to reduce sentence, the district 

court conducts a two-step analysis. Dillon v. United States, 560 U.S. 817, 826 

(2010). The court first determines whether the defendant is eligible for a 

reduction under U.S.S.G. § 1B1.10. Id. at 827. Here, it was undisputed that 

Collins was eligible for the requested sentence reduction. As for the second 

step, once the court determines that a defendant is eligible for a sentence 

modification, the court must then consider the applicable § 3553(a) factors to 

decide whether a reduction “is warranted in whole or in part under the 

particular circumstances of the case.” Id. 

In denying the motion to reduce sentence, the district court ruled as 

follows: “The Court finds that a sentence reduction is not appropriate in this 

instance due to public safety considerations, namely the defendant’s 

association with weapons as set forth in the original Presentence Investigation 

Report. See 18 U.S.C. § 3582(c)(2) and U.S.S.G. Section 1B1.10, Application 

Note 1(B)(ii).” Collins argues that the district court abused its discretion when 

it denied his motion for reconsideration based solely on his prior association 

with weapons. However, public safety is a factor to be weighed under § 3553. 

See § 3553(a)(2)(c) (requiring the court to consider the need for the sentence “to 

protect the public from further crimes of the defendant”). 

As previously set forth, Collins, represented by counsel, filed a 

memorandum in support of his request for a reduced sentence. The 

memorandum argued that Collins did not pose a danger to public safety and 

pointed out that he had received no disciplinary reports while incarcerated. 

The memorandum further argued that his consecutive sentence for the firearm 

offense sufficiently punished him for having a weapon. The memorandum also 

reported that he had taken the opportunity to better himself in prison by 

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earning his G.E.D. and participating in parenting classes. Collins’s argument 

boils down to asserting that the court did not properly balance the sentencing 

factors. The argument that the district court did not properly consider and 

balance the sentencing factors and that this Court should reevaluate them is 

insufficient to show an abuse of discretion. See United States v. Whitebird, 55 

F.3d 1007, 1010 (5th Cir. 1995).6

II. CONCLUSION

For the above reasons, the appeal from the order denying the motion to 

reduce Collins’s sentence is DISMISSED, and the appeal from the order 

denying reconsideration is AFFIRMED. 

 

6 Collins also requests this Court to remand the case to a different judge for 

resentencing. Because we are not remanding the case, we deny this request as moot. 

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