United States v. Gonzales-Robles , 285 F. App'x 168 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 23, 2008
No. 07-51437
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
VICTOR ALBERTO GONZALES-ROBLES, also known as Victor Gonzalez, also
known as Victor Gonzalez-Robles, also known as Victor H Gonzales, also known
as Victor Gonzales,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-178-ALL
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Victor Alberto Gonzales-Robles (Gonzales) pleaded guilty to one count of
conspiracy to import 50 kilograms or more of marijuana; he was sentenced to 97
months of imprisonment. The district court’s judgment was entered on
November 19, 2007, and the ten-day period for filing notice of appeal in a
*
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should not be published and is not precedent except under the limited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.
No. 07-51437
criminal proceeding expired on December 4, 2007. FED. R. APP. P. 4(b)(1)(A).
Gonzales’s notice of appeal was filed on December 5, 2007.
Gonzales’s failure to comply with the time limitations imposed by Federal
Rule of Appellate Procedure 4(b) does not deprive this court of jurisdiction over
his appeal. See United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007).
However, compliance with Rule 4(b)(1)(A) is required so long as the government
has not waived its application. Id.
A district court may grant a defendant an additional 30 days in which to
file a notice of appeal upon a showing of excusable neglect or good cause. FED.
R. APP. P. 4(b)(4). Gonzales’s notice of appeal, which was filed within this
additional 30-day period, suffices as a motion for a finding on excusable neglect
or good cause. See United States v. Golding, 739 F.2d 183, 184 (5th Cir. 1984).
This case is remanded to the district court for the limited purpose of determining
whether excusable neglect or good cause entitles Gonzales to an extension of
time to file a notice of appeal.
REMANDED.
2