United States v. Leijano-Cruz

United States Court of Appeals Fifth Circuit F I L E D In the December 20, 2006 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________

m 05-50280 _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ELUTERIO MAURO LEIJANO-CRUZ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court for the Western District of Texas m 2:04-CR-308-ALL ______________________________

Before JONES, Chief Judge, SMITH and and denied Leijano-Cruz’s motion for exten- STEWART, Circuit Judges. sion of time to file. Leijano-Cruz appeals that denial. We affirm. JERRY E. SMITH, Circuit Judge: I. Eluterio Leijano-Cruz was sentenced for il- Leijano-Cruz is a Mexican citizen who re- legal reentry but did not file a notice of appeal entered the United States after being removed. or motion to extend the time to file a notice of He was first deported in February 2004; before appeal within the time set forth in Federal Rule his deportation, he had been convicted of of Appellate Procedure 4(b). The district assault. In March 2004 he was found in Texas court sua sponte invoked rule 4(b)’s time limit and pleaded guilty of illegal reentry under

8 U.S.C. § 1326. A judgment of sentence was motion. entered on October 21, 2004. The court denied the motion to extend, The 10-day period for filing notice of ap- finding that the date the motion was filed was peal under rule 4(b)(1) expired on Novem- “beyond whatever statutory power the Court ber 4.1 The 30-day period for extending the may possess to extend Defendant’s deadline to time to file notice of appeal under rule 4(b)(4) file a notice of appeal.” The court added that ended on December 6 (30 days after the 10 “no showing has been made of good cause or days provided in rule 4(b)(1)(A)).2 excusable neglect that would allow this Court to extend the deadline if it could.” Leijano- On December 7 the Federal Public Defen- Cruz appeals the denial, arguing that rule 4(b) der filed a notice of appeal on Leijano-Cruz’s is a non-jurisdictional claim-processing rule behalf, and on December 10 he filed a motion that the government forfeited by failing to ob- to extend the time to file a notice of appeal ject to his motion for extension. pursuant to rule 4(b)(4), urging the district court to find that the late notice of appeal re- II. sulted from excusable neglect. The govern- This court has traditionally held that rule ment, though served, did not respond to the 4(b) is jurisdictional and thus cannot be for- feited or waived, so we cannot hear an appeal 1 if a party fails to comply with its timing re- Rule 4(b)(1)(A) sets the time within which a quirements.3 The decision in Eberhart v. Unit- criminal defendant must file a notice of appeal: ed States, 546 U.S. 12, 126 S. Ct. 403 (2005) (per curiam), however, casts doubt on our tra- In a criminal case, a defendant’s notice of ap- ditional view. peal must be filed in the district court within 10 days after the later of: In Eberhart the Court held that rule 33(a), (i) the entry of either the judgment or the order which allows a district court to vacate a judg- being appealed; or ment and grant a motion for a new trial if a

(ii) the filing of the government’s notice of 3 appeal. See, e.g., United States v. Golding, 739 F.2d 183, 184 (5th Cir. 1984) (“We are compelled to FED. R. APP. P. 4(b)(1)(A). raise sua sponte the issue of timeliness for a timely notice of appeal is essential to our jurisdiction on 2 Rule 4(b)(4) states: appeal.”); United States v. Awalt, 728 F.2d 704, 705 (1984) (“Courts cannot extend the time period Upon a finding of excusable neglect or good beyond the forty-day time period prescribed by cause, the district court maySSbefore or after Rule 4(b). To have the opportunity to seek relief the time has expired, with or without motion by showing excusable neglect, the late notice or and noticeSSextend the time to file a notice of some other filing evidencing an intention to appeal appeal for a period not to exceed 30 days from must be filed within the forty-day period. . . . the expiration of the time otherwise prescribed Because Awalt’s notice of appeal was not filed in by this Rule 4(b). time and because compliance with Rule 4(b) is mandatory and jurisdictional, his appeal must be FED. R. APP. P. 4(b)(4). dismissed.”).

party complies with its strict time limitation, within the 10-day period prescribed by Rule does not delimit subject-matter jurisdiction but 37(a)(2) is mandatory and jurisdictional.” Id. is an inflexible claim-processing rule. In that at 224. In Eberhart, 546 U.S. at __, 126 S. case, the defendant filed a supplemental mem- Ct. at 406, the Court explained that “Robinson orandum supporting his motion for a new trial is correct not because the district court lacked six months after the deadline set out in rule subject-matter jurisdiction, but because dis- 33(a). Eberhart, 546 U.S. at __, 126 S. Ct. at trict courts must observe the clear limits of the 404. The government opposed the motion on Rules of Criminal Procedure when they are the merits, but the district court granted it. Id. properly invoked.” The Court further expli- The court of appeals reversed the award of a cated “the central point of the Robinson case” new trial, holding that the district court lacked by stating that jurisdiction to grant one, but the Supreme Court reversed, stating that the government when the Government objected to a filing had forfeited its right to raise the defense of untimely under Rule 37, the court’s duty to untimeliness. Id. at 404, 407. dismiss the appeal was mandatory. The net effect of Robinson, viewed through the The outcome of Eberhart is less important clarifying lens of Kontrick, is to admonish for resolving this case than is its discussion of the Government that failure to object to un- United States v. Robinson, 361 U.S. 220 timely submissions entails forfeiture of the (1960), which involved an untimely notice of objection, and to admonish defendants that appeal under Federal Rule of Criminal Proce- timeliness is of the essence, since the Gov- dure 37, which is the predecessor to rule 4(b).4 ernment is unlikely to miss timeliness de- See Eberhart, 126 S. Ct. at 406. In Robinson, fects very often. the defendant filed a notice of appeal eleven days after the deadline in rule 37; the govern- Id. at 406-07. ment objected to the untimeliness, and the court of appeals held that the district court From Eberhart’s discussion of Robinson, could extend the time to file a notice of appeal one might conclude that rule 4(b) is nonjuris- (pursuant to Federal Rule of Civil Procedure dictional, but no court of appeals has yet done 45(b)) if the untimeliness was on account of so,5 and we find it unnecessary to take that excusable neglect. Robinson, 361 U.S. at 221-22. 5 Other circuits have recognized that Eberhart The Supreme Court disagreed and reversed, affects rule 4(b) but have refused to decide whether citing the rule stated in circuit court cases on rule 4(b) is jurisdictional. See, e.g., United States the issue: “[T]he filing of a notice of appeal v. Carelock, 459 F.3d 437, 440 n.6 (3d Cir. 2006) (“Although the language and commentary of the rules, along with their prior treatment by the Su- preme Court and this Court, strongly support the 4 The Advisory Committee Notes from rule conclusion that Rules 3 and 4 govern subject-mat- 4(b)’s 1967 adoption make plain that it merely re- ter jurisdiction, we need not answer this question at states rule 37: “Subdivision (b). This subdivision this time because waiver is not implicated here.”); is derived from FRCrP 37(a)(2) [rule 37(a)(2), United States v. Smith, 438 F.3d 796, 801 (7th Federal Rules of Criminal Procedure] without Cir. 2006) (recognizing that Eberhart may change change of substance.” (continued...)

step here. This is because, even if Eberhart cusable neglect. The district court could cor- applies to notices of appeal in criminal cases,6 rectly enforce the time limits, regardless of the Supreme Court there held only that a dis- whether they are jurisdictional. Irrespective of trict court’s decision to permit an untimely which standard of review is employed, the document to be considered could not be re- court neither erred nor reversibly erred in its versed in the absence of an objection by the denial of the rule 4(b)(4) motion. government in the district court. Eberhart does not hold that a defendant, as appellant AFFIRMED. from a decision that forbade his pursuing an untimely noticed appeal, has a right to have the untimeliness disregarded.

In other words, the district court does not err, after Eberhart, if it enforces an inflexible claim processing rule, and we may not reverse its decision to do so. Irrespective of whether the government noted the untimeliness in the district court, it is the defendant’s burden on appeal to show that the court erred in enforc- ing the rule.

On the facts of this case, the outcome is ob- vious. Leijano-Cruz did not file a timely no- tice of appeal, and as the district court noted, he utterly failed to assert any ground for ex-

5 (...continued) rule 4(b) but declining to decide whether it is jurisdictional). 6 Notices of appeal in civil cases might be dif- ferent from those in criminal cases, because notices in civil cases are governed by a statutorily-based time limit. Under Eberhart, there is a strong rule that Federal Rule of Appellate Procedure rule 4(a), governing civil appeals, is jurisdictional. See Bowles v. Russell, 432 F.3d 668, 669, 672 n.1 (6th Cir. 2005) (holding that “the fourteen-day period of Rule 4(a)(6) . . . is not susceptible to extension through mistake, courtesy, or grace,” because Con- gress limited the courts of appeals’ jurisdiction for civil cases in 28 U.S.C. § 2107, a statute distinct from rule 4(a)), cert. granted, 2006 U.S. LEXIS 9445 (U.S. Dec. 7, 2006).