United States v. Peter Christian Boulette ( 2021 )


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  • USCA11 Case: 20-14796      Date Filed: 11/16/2021   Page: 1 of 3
    [DO NOT PUBLISH]
    In the
    United States Court of Appeals
    For the Eleventh Circuit
    ____________________
    No. 20-14796
    Non-Argument Calendar
    ____________________
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    PETER CHRISTIAN BOULETTE,
    Defendant-Appellant.
    ____________________
    Appeal from the United States District Court
    for the Northern District of Alabama
    D.C. Docket No. 2:06-cr-00131-RDP-HNJ-1
    ____________________
    USCA11 Case: 20-14796        Date Filed: 11/16/2021     Page: 2 of 3
    2                      Opinion of the Court            20-14796-AA
    Before JILL PRYOR, BRASHER, and ANDERSON, Circuit Judges.
    PER CURIAM:
    On October 21, 2020, the district court entered an order
    denying Peter Boulette’s motion for compassionate release under
    
    18 U.S.C. § 3582
    (c)(1)(A). Under criminal timeliness rules, Bou-
    lette had 14 days to file a notice of appeal, i.e., until November 4,
    2020. See Fed. R. App. P. 4(b)(1); see also United States v. Fair,
    
    326 F.3d 1317
    , 1318 (11th Cir. 2003) (explaining that a motion un-
    der 
    18 U.S.C. § 3582
    (c)(2) is criminal in nature). The deadline in
    Rule 4(b) for a defendant to file a notice of appeal in a criminal
    case is not jurisdictional. United States v. Lopez, 
    562 F.3d 1309
    ,
    1313 (11th Cir. 2009). Instead, the filing deadline is considered a
    claims-processing rule, and the government can waive an objec-
    tion to an untimely notice of appeal. 
    Id.
     at 1312–13. Neverthe-
    less, if the government raises the issue of timeliness, then we
    “must apply the time limits of Rule 4(b).” 
    Id.
     at 1313–14.
    In its brief, the government argues that this appeal should
    be dismissed as untimely. Indeed, Boulette’s signed notice of ap-
    peal is dated December 2, 2020. Absent evidence that Boulette
    provided his notice of appeal to prison authorities for mailing at
    an earlier date, the notice of appeal is deemed filed on December
    2 and is, therefore, untimely. See Fed. R. App. P. 4(c)(1)(A); Jef-
    fries v. United States, 
    748 F.3d 1310
    , 1314 (11th Cir. 2014). How-
    ever, in criminal cases, we have customarily treated a late notice
    USCA11 Case: 20-14796       Date Filed: 11/16/2021   Page: 3 of 3
    20-14018              Opinion of the Court                      3
    of appeal that is filed within the 30 days during which an exten-
    sion is permissible as a motion for an extension of time and re-
    manded to the district court for a finding of good cause or excus-
    able neglect. See Fed. R. App. P. 4(b)(4); United States v. Ward,
    
    696 F.2d 1315
    , 1317-18 (11th Cir. 1983); United States v. Rothsei-
    den, 
    680 F.2d 96
    , 98 (11th Cir. 1982).
    Because Boulette’s notice of appeal was filed after the 14-
    day appeal period but within the next 30 days, we REMAND the
    case to the district court for the limited purpose of allowing the
    court to determine whether Boulette has shown excusable neglect
    or good cause warranting an extension of the appeal period. Fol-
    lowing this limited remand, the record as supplemented will be
    returned to this Court for further consideration. We defer ruling
    on the government’s request to dismiss pending the limited re-
    mand.