United States v. Jeff McGrue

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 25, 2022
• Docket: 20-50339
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 25 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-50339

Plaintiff-Appellee, D.C. No. 2:08-cr-01318-ODW-1

v. MEMORANDUM* JEFF MCGRUE,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Otis D. Wright, II, District Judge, Presiding

Submitted January 19, 2022**

Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.

Jeff McGrue appeals pro se from the district court’s orders denying his

motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) and motion

for reconsideration. We dismiss McGrue’s appeal as untimely.

Giving McGrue the benefit of the mailbox rule, he filed his notice of appeal

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 39 days after the district court’s order denying his motion for reconsideration, well

outside the 14-day deadline. See Fed. R. App. P. 4(b)(1)(A). We decline to

remand for the district court to determine whether to grant appellant an extension

of time to file the notice of appeal, see Fed. R. App. P. 4(b)(4); United States v.

Ono, 72 F.3d 101, 103 (9th Cir. 1995) (order), because McGrue waived any

challenge to the district court’s denial of compassionate release by failing to

challenge that denial in his opening brief. See United States v. Perez-Silvan, 861

F.3d 935, 938 (9th Cir. 2017) (declining to remand for the district court to

determine if there was excusable neglect for the untimely notice of appeal because

appellant waived his challenge to the revocation of supervised release by failing to

raise any arguments concerning the revocation in his opening brief). Because the

government properly objected to McGrue’s untimely notice of appeal, we must

dismiss. See United States v. Sadler, 480 F.3d 932, 942 (9th Cir. 2007).

McGrue’s motions to strike and to certify a question to the United States

Supreme Court, along with any other pending motions, are denied.

DISMISSED.

2 20-50339