USA v. Edgar Hernandez-Gomez

Filing

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]

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.

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