Case: 09-10372 Document: 00511323487 Page: 1 Date Filed: 12/16/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 16, 2010
                                     No. 09-10372
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

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.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 09-10372 Document: 00511323487 Page: 2 Date Filed: 12/16/2010

                                    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 F ED. R. A PP. P. 4(b)(1)(A)(i);
United States v. Alvarez, 

, 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, 

, 388–89 (5th Cir.
2007). But unless waived, it is mandatory. See 

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, 

, 558 n.2 (5th Cir. 2002); see also F ED. R. A PP. P. 28(a)(9). The district
court’s denial of Thibodeaux’s motion for leave to proceed IFP is therefore
affirmed.

                                           2
    Case: 09-10372 Document: 00511323487 Page: 3 Date Filed: 12/16/2010

                                  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, 

, 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.




                                        3