USA v. Edgar Hernandez-Gomez


PUBLISHED OPINION FILED. [14-41268 Dismissed ] Judge: TMR , Judge: JES , Judge: CH. Mandate pull date is 08/27/2015 for Appellant Edgar Hernandez-Gomez; granting motion to dismiss appeal filed by Appellee USA [7861832-2] [14-41268]

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Case: 14-41268 Document: 00513144241 Page: 1 Date Filed: 08/06/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 14-41268 Summary Calendar United States Court of Appeals Fifth Circuit FILED August 6, 2015 UNITED STATES OF AMERICA, Plaintiff-Appellee Lyle W. Cayce Clerk v. EDGAR HERNANDEZ-GOMEZ, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas Before REAVLEY, SMITH, and HAYNES, Circuit Judges. 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 Case: 14-41268 Document: 00513144241 Page: 2 Date Filed: 08/06/2015 No. 14-41268 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 (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 F. App’x 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. 2

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