United States v. Jenkins ( 2009 )


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  •           IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    May 1, 2009
    No. 07-10181
    Summary Calendar               Charles R. Fulbruge III
    Clerk
    UNITED STATES OF AMERICA
    Plaintiff-Appellee
    v.
    BENTLEY MARK JENKINS
    Defendant-Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 4:06-CR-18-ALL
    Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    Bentley Mark Jenkins appeals the 96-month sentence imposed following
    his guilty plea conviction to bank robbery.     The Federal Public Defender
    appointed to represent Jenkins on appeal moved to withdraw pursuant to
    Anders v. California, 
    386 U.S. 738
    (1967). Counsel noted in his Anders brief,
    that Jenkins filed an untimely notice of appeal. Counsel’s motion was denied,
    and briefing was ordered on whether this court’s reasoning in United States v.
    *
    Pursuant to 5 TH C IR. 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    should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
    No. 07-10181
    Acquaye, 
    452 F.3d 380
    , 382 (5th Cir. 2006), should be extended to apply to direct
    criminal appeals involving untimely notices of appeal.
    Jenkins complied with this court’s order and filed a brief on the issue.
    Jenkins contends that this court’s reasoning in Acquaye should be extended. He
    asserts that the Government should be deemed to have forfeited the right to rely
    on the claim processing time limits for the filing of a notice of appeal once a
    notice has been filed and transcripts have been prepared. The Government has
    filed a brief arguing that as long as it invokes the claim processing rule time
    limits for filing a notice of appeal before this court addresses the merits of the
    appeal, the invocation should be considered timely. The Government has also
    filed a motion to dismiss Jenkins’s appeal on the basis that he failed to file a
    timely notice of appeal.
    In United States v. Martinez, 
    496 F.3d 387
    , 388-89 (5th Cir.), cert. denied,
    
    128 S. Ct. 728
    (2007), this court determined that, because the 10-day time limit
    to file a notice of appeal in Rule 4(b)(1)(A) of the Federal Rules of Appellate
    Procedure is not statutorily imposed, the time limit is “not jurisdictional and
    [can] be waived.” In the instant case, the Government did not forfeit or waive
    its objection to Jenkins’s untimely notice of appeal. See United States v. Sealed
    Appellant, 304 F. App’x 282, 284 (5th Cir. 2008). Accordingly, the Government’s
    motion is GRANTED, and the appeal is DISMISSED.
    2
    

Document Info

Docket Number: 07-10181

Judges: Smith, Stewart, Southwick

Filed Date: 5/1/2009

Precedential Status: Non-Precedential

Modified Date: 11/5/2024