United States v. Hernandez-Gomez

795 F.3d 510, 2015 U.S. App. LEXIS 13761, 2015 WL 4666156

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 6, 2015
• Docket: No. 14-41268
• Status: Published

Opinion

PER CURIAM:

Edgar Hernandez-Gomez (Hernandez) pleaded guilty to possession with the intent to distribute heroin. He appeals, arguing that the district court erred when it attributed 10 to 30 kilograms of heroin to him for sentencing purposes. The Government has filed a motion to dismiss the appeal as untimely.

In a criminal case, an incarcerated defendant generally has 14 days from the entry of the judgment on the docket to file a notice of appeal, or to deposit such in his institution’s mail system. See Fed. R. App. P. 4(b)(1)(A)(i), (b)(6), (c)(1). Hernandez’s notice of appeal was not filed or submitted in a timely manner, nor was it filed within the permissible extension period of Rule 4(b)(4)(B).

The time limit set forth in Rule 4(b)(1)(A) is mandatory, but it is not jurisdictional. United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir.2007) (citing Bowles v. Russell, 551 U.S. 205, 207-14, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007)). Thus, the requirements of Rule 4(b)(1)(A) may be waived. Hernandez argues that the Government did so by waiting until he filed his initial brief to file a motion to dismiss the appeal. We conclude that a motion to dismiss filed with or before the Government’s first substantive filing (usually, its opening brief) is timely. See United States v. Sealed Appellant, 304 Fed.Appx. 282, 284 (5th Cir.2008). Thus, we conclude that the Government did not waive the timeliness objection. See id.; Martinez, 496 F.3d at 389.

Accordingly, the Government’s motion is GRANTED and the appeal is DISMISSED.