IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-41673

Summary Calendar 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee 

v. 

HOMERO REY CANTU, JR., 

Defendant-Appellant 

Appeals from the United States District Court 

for the Southern District of Texas 

USDC No. 2:07-CR-382-1 

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges 

STEPHEN A. HIGGINSON, Circuit Judge:*

Homero Rey Cantu, Jr., federal prisoner # 98371-079, appeals the 

district court’s denial of his motion for reconsideration of the district court’s

order denying Cantu’s 18 U.S.C. § 3582(c)(2) motion seeking a reduction of his 

sentence pursuant to Amendment 782, which lowered the drug-related offense 

levels in U.S.S.G. § 2D1.1(c). 

 

* 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

March 3, 2017

Lyle W. Cayce

Clerk

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No. 15-41673

2 

This court must examine the basis of its jurisdiction, sua sponte, if 

necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A motion for 

reconsideration filed in a criminal case must be filed within the permissible 

time for appeal or the district court lacks jurisdiction to address the motion. 

United States v. Miramontez, 995 F.2d 56, 58 n.2 (5th Cir. 1993); United States 

v. Cook, 670 F.2d 46, 48-49 (5th Cir. 1982). Cantu’s motion for reconsideration 

was not filed within 14 days of the district court’s sua sponte order denying a 

reduction of Cantu’s sentence pursuant to § 3582. See FED. R. APP. P. 

4(b)(1)(A)(i). Thus, the district court lacked jurisdiction to address the motion. 

See Cook, 670 F.2d at 48-49.

Although an untimely filed motion for reconsideration does not extend 

the time for appealing the underlying judgment, because the Government 

failed to raise the issue of the untimeliness of the appeal, this court pretermits 

the timeliness issue. See United States v. Martinez, 496 F.3d 387, 388-89 (5th 

Cir. 2007); United States v. Brewer, 60 F.3d 1142, 1143-44 (5th Cir. 1995). 

Cantu argues that the district court was not authorized to sua sponte 

deny the reduction of his sentence under § 3582(c)(2). A district court may sua 

sponte grant or deny a § 3582(c)(2) motion as long as it considers the arguments 

of the parties and the relevant 18 U.S.C. § 3553(a) factors. See United States 

v. Larry, 632 F.3d 933, 935-37 (5th Cir. 2011). This argument is without merit.

According to Cantu, the district court abused its discretion in denying 

his § 3582(c)(2) motion because it based its decision on an erroneous 

assessment of the evidence presented at trial and an improper analysis of the 

§ 3553(a) factors. We review a district court’s decision to reduce a sentence 

pursuant to § 3582(c)(2) for an abuse of discretion, its interpretation of the 

Guidelines de novo, and its factual findings for clear error. United States v. 

Henderson, 636 F.3d 713, 717 (5th Cir. 2011).

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Cantu is not entitled to rely on § 3582(c)(2) to relitigate the amount of 

drugs attributed to him at trial or sentencing. See United States v. Hernandez, 

645 F.3d 709, 712 (5th Cir. 2011). The record reflects that the district court 

considered Cantu’s arguments, his eligibility for a reduction of sentence under 

Amendment 782, and the relevant sentencing factors under § 3553(a). See 

Dillon v. United States, 560 U.S. 817, 826 (2010); U.S.S.G. 1B1.10. Cantu has 

not demonstrated that the district court abused its discretion in denying the 

motion. 

Nor did the district court err in refusing to correct information in the 

presentence report based on it sustaining Cantu’s objection to the base offense 

level at sentencing. The error was not clerical in nature and did not arise from 

an oversight or omission. See FED. R. CRIM. P. 36; United States v. Mackay, 

757 F.3d 195, 200 (5th Cir. 2014). Thus, the district court did not err in 

declining to make the correction to the PSR pursuant to Rule 36. Id.

Last, Cantu has not provided any reliable evidence showing that the 

district court exhibited extreme bias toward him in denying his § 3582(c)(2) 

motion. Thus, he has not shown that the district court abused its discretion in 

denying the motion to recuse. See United States v. Mizell, 88 F.3d 288, 299 

(5th Cir. 1996). 

Cantu has not repeated his request to recuse the Assistant United States 

Attorney from any involvement in his criminal case. Therefore, he has 

abandoned that claim on appeal. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 

1993).

 AFFIRMED. 

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