United States v. Israel Garza , 670 F. App'x 245 ( 2016 )

Case: 15-41599 Document: 00513736944 Page: 1 Date Filed: 10/27/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-41599 FILED
Summary Calendar October 27, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
ISRAEL GARZA,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:13-CR-1064-1
Before SMITH, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM: *
Israel Garza contests his 240-month prison term for possession with
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-41599 Document: 00513736944 Page: 2 Date Filed: 10/27/2016
No. 15-41599
intent to distribute more than five kilograms of cocaine. He contends that the
district court could sentence him to only a ten-year maximum because the
information filed under 21 U.S.C. § 851 indicated that the enhancement was
being sought under 21 U.S.C. § 841(b)(1)(b). The government moves to dismiss
the appeal on the basis that Garza failed to file a timely notice of appeal.
The record supports the government’s contention. Garza filed his notice
of appeal almost eighteen months after entry of judgment, well beyond the
fourteen days that is permitted and also well beyond the time during which
the district court could have granted an extension on a showing of either
excusable neglect or good cause. See FED. R. APP. P. 4(b)(1)(A)(i), (b)(4); United
States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000). Although the untimely
filing of an appeal in a criminal case is not jurisdictional, see United States v.
Martinez, 496 F.3d 387, 388–89 (5th Cir. 2007), this court will not disregard
untimeliness where the government raises the issue, see Eberhart v. United
States, 546 U.S. 12, 18 (2005).
The motion to dismiss is GRANTED, and the appeal is DISMISSED as
untimely.
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