USA v. Jose Arias-Macedo

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USA v. Jose Arias-Macedo

Doc. 0

Case: 09-50957

Document: 00511222276

Page: 1

Date Filed: 09/01/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50957 S u m m a r y Calendar September 1, 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 , versu s J O S E ARIAS-MACEDO, 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 Western District of Texas N o .5 :0 9 -C R -1 8 3 -1

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:*

J o s e Arias-Macedo appeals his sentence. The government argues that the a p p e a l should be dismissed as untimely.
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-50957

Document: 00511222276 Page: 2 No. 09-50957

Date Filed: 09/01/2010

T h e notice of appeal was due within 10 days after the entry of the judgm e n t of conviction. FED. R. APP. P. 4(b)(1)(A)(i) (2008). In a criminal case, a dist r ic t court may extend the time for filing a notice of appeal for an additional 30 d a y s on a finding of good cause or excusable neglect. FED. R. APP. P. 4(b)(4). In c r im in a l cases, a notice of appeal filed within this additional 30-day period is c u s t o m a r ily treated as a motion under FED. R. APP. P. 4(b)(4). United States v. G o ld in g , 739 F.2d 183, 184 (5th Cir. 1984). In Arias-Macedo's case, however, the a d d it ion a l period ended in August 2009, well before Arias-Macedo filed his notice o f appeal in October 2009. Therefore, the notice of appeal is untimely. I n a criminal case, the untimely filing of a notice of appeal is not jurisdict io n a l and can be waived. See United States v. Martinez, 496 F.3d 387, 388-89 (5 t h Cir. 2007). Because, however, the government has challenged the timelin e s s of the notice of appeal, the appeal is DISMISSED. See United States v. G r a y , 332 F. App'x 192, 193 (5th Cir. 2009).

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