United States v. Gonzales-Robles

285 F. App'x 168

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 23, 2008
• Docket: 07-51437
• Status: Unpublished

Opinion

PER CURIAM: *

Victor Alberto Gonzales-Robles (Gonzales) pleaded guilty to one count of conspiracy to import 50 kilograms or more of marijuana; he was sentenced to 97 months of imprisonment. The district court’s judgment was entered on November 19, 2007, and the ten-day period for filing notice of appeal in a criminal proceeding expired on December 4, 2007. Fed. R.App. P. 4(b)(1)(A). Gonzales’s notice of appeal was filed on December 5, 2007.

Gonzales’s failure to comply with the time limitations imposed by Federal Rule of Appellate Procedure 4(b) does not deprive this court of jurisdiction over his appeal. See United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir.2007). However, compliance with Rule 4(b)(1)(A) is required so long as the government has not waived its application. Id.

A district court may grant a defendant an additional 30 days in which to file a notice of appeal upon a showing of excusable neglect or good cause. Fed. R.App. P. 4(b)(4). Gonzales’s notice of appeal, which was filed within this additional 30-day period, suffices as a motion for a finding on excusable neglect or good cause. See United States v. Golding, 739 F.2d 183, 184 (5th Cir.1984). This case is remanded to the district court for the limited purpose of determining whether excusable neglect or good cause entitles Gonzales to an extension of time to file a notice of appeal.

REMANDED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.