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

Appeals 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 distribute a controlled substance, as well as the 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 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

August 15, 2016

Lyle W. Cayce

Clerk

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No. 15-50761

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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, “inflexible claim-processing rule” can be forfeited but 

assures relief when properly asserted). Although the government did not 

participate in the proceeding in the district court, it has not raised the 

untimeliness 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 “technically eligible for a reduction,” because it 

determined that his 110-month sentence was reasonable, protected the public 

from his further crimes, and deterred the type of criminal conduct Alvarez had 

displayed 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 

statement merely states that a comparable reduction in light of a substantialassistance departure “may be appropriate,” U.S.S.G. § 1B1.10(b)(2)(B), and the 

commentary states that a “court may consider 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 unwarranted sentencing disparities given

that the Western District of Texas has granted 82 percent of requested 

sentence reductions “under 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 

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intended by Congress is not unwarranted.” United States v. Candia, 454 F.3d 

468, 476 (5th Cir. 2006) (internal quotation 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 district court’s order 

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

2011).

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