USA v. Moron-Solis

Filing

USA v. Moron-Solis

Doc. 0

Case: 09-40089

Document: 00511189742

Page: 1

Date Filed: 07/30/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40089 S u m m a r y Calendar July 30, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J U A N MORON-SOLIS, also known as Juan Garica Lopez, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 7:07-CR-494-1

B e fo r e DAVIS, SMITH and SOUTHWICK, Circuit Judges. P E R CURIAM:* J u a n Moron-Solis (Moron) pleaded guilty to one count of credit card fraud a n d was sentenced to 46 months of imprisonment. His judgment of conviction a n d sentence was signed on March 26, 2008, and entered on November 14, 2008. On January 22, 2009, Moron filed a pro se notice of appeal and sought leave to a p p e a l out of time, alleging that his counsel had failed to appeal his case. Moron a s s e r t e d that he had initially been assured by his attorney that an appeal had b e e n timely filed but had subsequently been advised by the attorney that filing
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 09-40089

Document: 00511189742 Page: 2 No. 09-40089

Date Filed: 07/30/2010

a n appeal was not the attorney's job to do. The district court denied Moron an o u t-o f-t im e appeal. Moron appeals that ruling and contends also that his offense level was im p r o p e r ly enhanced by two levels, pursuant to U.S.S.G. § 2B1.1(b)(2), on the b a s is that the offense involved more than 10 victims. The Government responds t h a t the appeal must be dismissed as untimely. Moron replies that his pro se m otio n to extend the deadline for appealing should have been liberally construed a s a motion to vacate under 28 U.S.C. § 2255 on the basis of ineffective a s s is t a n c e of counsel. A criminal defendant must file his notice of appeal within 10 days after the e n tr y of the judgment or order being appealed.1 FED. R. APP. P. 4(b)(1)(A)(I) (2 0 0 8 ). If it finds good cause or excusable neglect, the district court may extend t h a t time "for a period not to exceed 30 days." FED. R. APP. P. 4(b)(4) (2008). Because the 10-day limitation on filing a notice of appeal is not statutorily im p o s e d , it is not jurisdictional and may be waived. United States v. Martinez, 4 9 6 F.3d 387, 388-89 (5th Cir. 2007) (extending Bowles v. Russell, 551 U.S. 205, 2 0 8 -1 4 (2007)). Nothing in the record, however, suggests that the Government w a iv e d any temporal requirements in this case. B e c a u s e final judgment was entered on November 14, 2008, Moron had u n t il November 28, 2008, to file a notice of appeal that would be timely. FED. R . APP. P. 4(b)(1)(A)(i) (2008); FED. R. APP. P. 26(a)(2) (2008).2 Moron failed to do s o , and the district court's discretionary authority to extend the 10-day period

Effective December 1, 2009, the 10-day period in Rule 4 was increased to 14 days. See FE D . R. APP. P. 4(b)(1)(A) (2009); see also supra advisory committee notes regarding 2009 amendments (subdivisions (b)(1)(A) and (b)(3)(A)). This opinion uses the prior version of Rule 4; but given that Moron's appeal notice was filed more than two months after the entry of judgment, the result is the same under either version of the rule. Rule 26 was revised effective December 1, 2009. See FED. R. APP. P. 26 (2009); see also supra advisory committee notes regarding 2009 amendments (subdivision (a)(1)). Under the revised rule, all deadlines measured in days are computed the same way; the number of days does not matter. See FED. R. APP. P. 26(a)(1).
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Case: 09-40089

Document: 00511189742 Page: 3 No. 09-40089

Date Filed: 07/30/2010

b a s e d on good cause or excusable neglect expired 30 days later, on December 29, 2 0 0 8 . FED. R. APP. P. 4(b)(4) (2008).3 Moron's notice of appeal and incorporated m o t io n to extend the time for appealing, which Moron dated January 14, 2008, w a s filed in the district court on January 20, 2008. That filing thus could not s e r v e as a timely notice of appeal or motion to extend the time for appealing. See F ED. R. APP. P. 4(b) (2008). B e c a u s e Moron filed his motion and notice of appeal pro se, it must be g iv e n a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). We t h e r e fo r e construe Moron's motion as a § 2255 motion asserting a claim of in e ffe c t iv e assistance of counsel, deem it timely because it was filed less than one y e a r after the judgment of conviction became final for want of a timely appeal, s e e § 2255(f), and remand to the district court for further proceedings consistent w it h this order. W e express no opinion on the merits of Moron's constitutional claim, such a s whether he actually did ask counsel to file an appeal or whether counsel failed t o consult with his client. See Roe v. Flores-Ortega, 528 U.S. 470, 477-78 (2000). But the interests of justice require that the district court give Moron's claims a d d it io n a l consideration. Before it does so, however, the district court is to p r o v id e Moron with appropriate notice that his motion for an out-of-time appeal w ill be recharacterized as a § 2255 motion, warn him that any subsequent § 2255 m o t io n will be subject to second or successive restrictions, and provide him an o p p o r t u n i t y to withdraw or amend the motion to include all of his claims. See C a s tr o v. United States, 540 U.S. 375, 381-83 (2003). V A C A T E D and REMANDED.

The 30-day period under Rule 4(b)(4) was not changed by the 2009 amendments to the Federal Rules of Appellate Procedure. See Rule 4(b)(4) (2010).

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