United States v. Duran

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 4, 2022
• Docket: 21-50104
• Status: Unpublished

Opinion

Case: 21-50104 Document: 00516153177 Page: 1 Date Filed: 01/04/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED January 4, 2022 No. 21-50104 Lyle W. Cayce Summary Calendar Clerk

United States of America,

Plaintiff—Appellee,

versus

Cleto Samuel Duran,

Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 1:03-CR-144-3

Before Southwick, Graves, and Costa, Circuit Judges. Per Curiam:* Cleto Samuel Duran, federal prisoner # 28996-180, has appealed the district court’s order denying his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). The Government moves to dismiss the appeal as untimely or, alternatively, for a 30-day extension of time to file a brief.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 21-50104 Document: 00516153177 Page: 2 Date Filed: 01/04/2022

No. 21-50104

Duran filed his notice of appeal after the deadline and beyond the time during which the district court could have granted him an extension. Fed. R. App. P. 4(b)(1)(A)(i), (b)(4). While the timely filing of a notice of appeal in a criminal case is not jurisdictional, it is mandatory. United States v. Pesina- Rodriguez, 825 F.3d 787, 788 (5th Cir. 2016). We will enforce the mandatory time limit by dismissing the appeal where, as here, the Government timely raises the issue. See United States v. Hernandez-Gomez, 795 F.3d 510, 511 (5th Cir. 2015). Accordingly, the Government’s motion to dismiss is GRANTED, its alternative motion for an extension of time is DENIED as unnecessary, and the appeal is DISMISSED as untimely.