United States v. Lewis ( 2021 )

Case: 21-10007 Document: 00515948475 Page: 1 Date Filed: 07/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 22, 2021
No. 21-10007
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
James Lewis,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CR-177-1
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
James Lewis has appealed the district court’s order denying his
motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i).
Lewis’s notice of appeal was filed 22 days after entry of the order appealed
from and, therefore, was untimely. See Fed. R. App. P. 4(b)(1)(A)(i).
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-10007 Document: 00515948475 Page: 2 Date Filed: 07/22/2021
No. 21-10007
The Government contends that the appeal should be dismissed. The
Rule 4(b) time limit, although not jurisdictional, is mandatory. United States
v. Hernandez-Gomez, 795 F.3d 510, 511 (5th Cir. 2015); see also Manrique v.
United States, 137 S. Ct. 1266, 1272 (2017). The Government may waive the
time limitation but does not do so where, as here, it contests the timeliness of
the notice of appeal in its first substantive filing. See Hernandez-Gomez, 795
F.3d at 511.
A district court may extend the time to file a notice of appeal “for a
period not to exceed 30 days from the expiration of the time otherwise
prescribed” based on a finding of excusable neglect or good cause. Fed. R.
App. P. 4(b)(4). Lewis’s notice of appeal, filed within the 30-day period, is
construed as a motion for an extension of time based on excusable neglect.
See United States v. Golding, 739 F.2d 183, 184 (5th Cir. 1984).
Accordingly, this case is REMANDED to the district court for the
limited purpose of determining whether there is excusable neglect or good
cause to warrant an extension of time. Upon making this finding, the district
court shall promptly return the case to this court for further proceedings.
Lewis’s motion for leave to supplement the record on appeal is CARRIED
with the case.
2