FILED
                                                                       United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                            Tenth Circuit

                                  TENTH CIRCUIT                             November 9, 2016

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellant,

v.                                                           No. 16-2120
                                                   (D.C. No. 1: 10-CR-03349-WJ-1)
EDUARDO CARRILLO-PEREZ,                                       (D. N.M.)

             Defendant – Appellee.




                             ORDER AND JUDGMENT*


Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.



      Eduardo Carrillo-Perez pled guilty to conspiracy to possess with intent to

distribute more than 500 grams of methamphetamine in violation of 21 U.S.C.



      *
         Oral argument would not materially assist the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). We have decided this case on the briefs.
        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). 

846. In 2012, he was sentenced to 120 months imprisonment, the statutory

mandatory minimum. See 21 U.S.C. § 841(b)(1)(A). He did not file a direct appeal.

       Subsequently, the United States Sentencing Commission retroactively lowered the

base offense levels for certain federal drug crimes (Amendment 782). See U.S.S.G.

suppl. to App. C, amends. 782, 788. Armed with Amendment 782, Carrillo-Perez filed a

pro se motion for a sentence reduction under 18 U.S.C. § 3582(c)(2), which allows a

court to reduce the sentence of a defendant who was “sentenced to a term of

imprisonment based on a sentencing range that has subsequently been lowered by the

Sentencing Commission.” The district judge concluded Carrillo-Perez was ineligible for

relief under § 3582(c)(2) because he had been sentenced to the statutory minimum, which

was not affected by Amendment 782. He dismissed the motion for want of jurisdiction.

       Carrillo-Perez’s notice of appeal indicates he is challenging the dismissal of his

§ 3582(c)(2) motion. Yet his appellate brief makes no argument concerning that

dismissal. He has waived the only issue he has identified for this appeal. See Toevs v.

Reid, 

, 911 (10th Cir. 2012) (“Arguments not clearly made in a party’s

opening brief are deemed waived. This court has not hesitated to apply this waiver rule

to prisoner litigants, even to prisoners who proceed pro se and therefore are entitled to

liberal construction of their filings.”) (citations omitted). But, ironically, he makes other

arguments.

       His brief raises the validity of his guilty plea and the effectiveness of his trial




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counsel.1 But a defendant cannot use a § 3582(c)(2) appeal to attack his original

judgment. See United States v. Smartt, 

, 542-43 (10th Cir. 1997) (stating we

have no jurisdiction under § 3582(c) to review defendant’s ineffective assistance of

counsel claim concerning original sentence and affirming the district court’s dismissal of

his § 3582(c) motion); see also United States v. Chatman, 359 F. App’x 62, 63 (10th Cir.

2010) (unpublished) (declining to review drug quantity amount found at original

sentencing; “[i]t is well-established that a defendant cannot use a § 3582(c)(2) motion to

collaterally attack his sentence”).

       Moreover, any attempt to appeal from his conviction would be untimely. See

Smith v. Barry, 

, 249 (1992) (an appellant’s opening brief is effective as a

notice of appeal if it “is timely under [Fed. R. App. P. 4] and conveys the information

required by [Fed. R. App. P. 3(c)]”). Judgment was entered on June 18, 2012. The time

for appealing from that judgment has long since passed. See Fed. R. App. P.

4(b)(1)(A)(i) (requiring a criminal defendant’s notice of appeal to be filed within 14 days

of the judgment). While the government has not invoked Rule 4, see United States v.

Garduño, 

, 1291 (10th Cir. 2007) (Rule 4(b)(1)(A) is an “‘inflexible claim-

processing rule[ ],’ which unlike a jurisdictional rule, may be forfeited if not properly

raised by the government”), we may raise it sua sponte when the delay has been

inordinate. See United States v. Mitchell, 

, 750 (10th Cir. 2008) (“Because


       1
        He also claims his counsel was ineffective on appeal but there was no direct
appeal in this case.

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Rule 4(b) implicates important judicial interests beyond those of the parties, we hold that

this court may raise its time bar sua sponte. This power, however, is limited and should

not be invoked when judicial resources and administration are not implicated and the

delay has not been inordinate.”). Sua sponte dismissal is appropriate in this case. The

appeal was filed inordinately late—four years after judgment.

       DISMISSED.



                                                 Entered by the Court:



                                                 Terrence L. O’Brien
                                                 United States Circuit Judge




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