United States v. Garcia ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 12, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-4027
(D.C. No. 2:13-CR-00180-DN-1)
MARCUS ALEXANDER GARCIA, (D. Utah)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Marcus Garcia, appearing pro se, appeals a district court order denying his
motion for pre-sentence confinement credit. We dismiss his appeal as untimely.
I
Pursuant to a Fed. R. Crim. P. 11(c)(1)(C) plea agreement, Garcia pled guilty
to assault on a federal officer. Adopting the sentence proposed in the plea agreement,
the district court sentenced Garcia to 87 months to run concurrent with any time
Garcia was ordered to serve in custody for Utah offenses.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Garcia later filed a motion seeking credit for pre-sentence confinement, much
of which was served in state custody. On January 9, 2017, the district court denied
Garcia’s motion, concluding the sentence imposed accurately reflected the parties’
agreement. Garcia filed a notice of appeal with a declaration indicating it was mailed
on February 9, 2017.
II
A criminal defendant must file a notice of appeal within fourteen days of entry
of the judgment or order being appealed. Fed. R. App. P. 4(b)(1)(A)(i). An order is
considered entered when it is noted on the criminal docket in a publicly accessible
manner. United States v. Mendoza, 698 F.3d 1303, 1308 (10th Cir. 2012). The order
denying Garcia’s motion was entered on January 9, 2017. His notice of appeal was
filed 31 days later.1 Rule 4(b)(1)(A)(i) is an “inflexible claim processing rule” that
requires us to grant relief to a party that properly raises it. United States v. Garduño,
506 F. 3d 1287, 1291 (10th Cir. 2007) (quotation omitted). A challenge to the
timeliness of a notice of appeal in a criminal case is proper even if raised for the first
time in the government’s answer brief, as it was here. Mendoza, 698 F.3d at 1308
n.1. Because Garcia’s notice of appeal was untimely and the issue was properly
raised by the government, we must dismiss.2
1
Because Garcia’s notice of appeal contained a proper declaration, it is treated
as filed on the day it was mailed under the prison mailbox rule. See Price v. Philpot,
420 F.3d 1158, 1164 (10th Cir. 2005).
2
We also note that credit for pre-sentence confinement is generally decided by
the Bureau of Prisons (“BOP”), not the sentencing court. United States v. Wilson,
2
III
For the foregoing reasons, we DISMISS Garcia’s appeal. His motion to
proceed in forma pauperis is GRANTED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
503 U.S. 329, 332 (1992). BOP decisions on such credit may be challenged by way
of a 28 U.S.C. § 2241 petition filed in the district of confinement. See United States
v. Eccleston, 521 F.3d 1249, 1253 (10th Cir. 2008).
3