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

No. 15

- 50761 c/w No. 15

- 50917 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v.
ALFREDO ALVAREZ , Defendant

- Appellant

Appeal s from the United States District Court for the Western District of Texas USDC No. 1:12

- CR

- 234

- 7

Before REAVLEY, OWEN, and ELROD, Circuit Judges. PER CURIAM: * Alfredo Alvarez, federal prisoner # 99551

- 280, appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction of his sentence for conspiracy to distr ibute a controlled substance , as well as t he denial of his motion to reconsider

. However , he did not file his motion to reconsider within the 14

- day period for seeking an appeal from the denial of his § 3582(c)(2)

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 15, 2016

Lyle W. Cayce Clerk Case: 15-50761 Document: 00513637979 Page: 1 Date Filed: 08/15/2016No. 15

- 50761

2 motion. Rule 4(b)’s time limit is not jurisdictional, United States v. Martinez , 496 F.3d 387, 388

- 89 (5th Cir. 2007), and may be forfeited if not asserted. See Eberhart v. United States , 546 U.S. 12, 19 (2005) (explaining that a nonjurisdictional, “ inf lexible claim

- processin g rule” can be forfeited but

assure s relief when properly asserted ). Although the government did not participate in the proceeding in the district court, it has not raised the

un timeliness of the motion to reconsider in this court and has thus forfeited any challenge thereto. See id. The district court denied Alvarez’s § 3582(c)(2) motion , despite concluding that Alvarez was “techni cally eligible for a reduction,” because it determined that hi s 11 0

- month sentence was reasonable, protect ed the public from his further crime s , and deterred the type of criminal con duct Alvarez had dis played in the past. Alvarez argues that the district court failed to give adequate weight to his post

- sentencing conduct and to the fact that he received a departure based on substantial assistance

. However, the applicable policy
stat ement merely states that a comparable reduction in light of a substantial

assistance departure “m ay be appropriate,” U.S.S.G. § 1B1.10(b)(2)(B), and the commentary states that a “court may consi der post

- sentencing conduct,” § 1B1.10(b)(2)(B), comment. (n.1(B)(iii)). The district court has “no obligation” to reduce a sentence. United States v. Evans , 587 F.3d 667, 673 (5th Cir. 2009). Additionally, Alvarez contends that the district court failed to give adequate weight to the need to avoid unw arranted sentencing disparities given that the Western District of Texas has granted 82 percent of requested sentence reduction s “un der the amended drug guidelines. ” However, it is the disparity between similarly situated defendants that Congress seeks to avoid

. See 18 U.S.C. § 3553(a)(6). “Congress intended that certain disparities be caused by application of the federal guidelines, and a sentencing disparity Case: 15-50761 Document: 00513637979 Page: 2 Date Filed: 08/15/2016No. 15

- 50761

3 intended by Congress is not unwarranted.” United States v. Candia , 454 F.3d 468, 476 (5th Cir. 2006) (internal quotat ion marks and citations omitted )

. Alvarez’s offense level was based on the quantity of heroin for which he was held responsible , and a defendant with a similar record who was convicted of similar conduct would face imprisonment for 210 to 262 months. Alvarez ’s guideline range of 110 to 137 months was lower because of his acceptance of responsibility and substantial assistance , so the disparity between his sentence and that of a similarly situated defendant was intended by Congress and therefore warranted. See United States v. Duhon , 541 F.3d 391, 397 (5th Cir. 2008 ). As Alvarez has not presented any argument to undermine the discretionary decision to deny his § 3582(c)(2) motion, the dis trict court’s order is AFFIRMED

. See United States v. Henderson , 636 F.3d 713, 717 (5th Cir. 2011)

. Case: 15-50761 Document: 00513637979 Page: 3 Date Filed: 08/15/2016