United States v. Jose Arias-Macedo

394 F. App'x 94

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 1, 2010
• Docket: 09-50957
• Status: Unpublished

Opinion

PER CURIAM: *

Jose Arias-Macedo appeals his sentence. The government argues that the appeal should be dismissed as untimely.

The notice of appeal was due within 10 days after the entry of the judgment of conviction. Fed. R.App. P. 4(b)(l)(A)(i) (2008). In a criminal case, a district court may extend the time for filing a notice of appeal for an additional 30 days on a finding of good cause or excusable neglect. Fed. R.App. P. 4(b)(4). In criminal cases, a notice of appeal filed within this additional 30-day period is customarily treated as a motion under Fed. R.App. P. 4(b)(4). United States v. Golding, 739 F.2d 183, 184 (5th Cir.1984). In Arias-Macedo’s case, however, the additional period ended in August 2009, well before Arias-Macedo filed his notice of appeal in October 2009. Therefore, the notice of appeal is untimely.

In a criminal case, the untimely filing of a notice of appeal is not jurisdictional and can be waived. See United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir.2007). Because, however, the government has challenged the timeliness of the notice of appeal, the appeal is DISMISSED. See United States v. Gray, 332 Fed.Appx. 192, 193 (5th Cir.2009).

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.