United States v. Luis Escobedo-Salinas , 398 F. App'x 158 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0641n.06
No. 08-4253 FILED
Oct 07, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE
v. ) NORTHERN DISTRICT OF
) OHIO
LUIS ESCOBEDO-SALINAS, )
) OPINION
Defendant-Appellant. )
BEFORE: MARTIN and McKEAGUE, Circuit Judges; and LUDINGTON, District
Judge.*
PER CURIAM. Defendant Luis Escobedo-Salinas pleaded guilty to the charge of illegal
re-entry after being deported, in violation of 8 U.S.C. § 1326. He was sentenced on August 11, 2008
to a prison term of 60 months. The judgment of sentence was entered on August 12, 2008.
Defendant filed his notice of appeal on September 4, 2008, contending the sentence is unreasonable.
Under Fed. R. App. P. 4(b)(1)(A), as it existed when defendant was sentenced, defendant was
required to file his notice of appeal within 10 days after entry of the judgment, or, in other words,
not later than August 26, 2010.1 His notice of appeal was not filed within this period. Nor did
*
Honorable Thomas L. Ludington, United States District Judge for the Eastern District of
Michigan, sitting by designation.
1
Effective December 1, 2009, the Rule 4(b)(1)(A) time period was changed to 14 days.
However, prior to December 1, 2009, the applicable 10-day period was calculated without counting
intermediate Saturdays, Sundays and holidays, per Fed. R. App. P. 26(a), a method that also
No. 08-4253
United States v. Escobedo-Salinas
defendant seek and obtain an extension of the 10-day period in the district court based on a showing
of excusable neglect or good cause, as permitted by Rule 4(b)(4). Further, although defendant was
confined at the Northeast Ohio Correctional Center in Youngstown, Ohio, at the time the notice of
appeal was filed, he has not made the showing required under Rule 4(c)(1) that he deposited the
notice of appeal in the Correctional Center’s internal mail system on or before August 26, 2010.
It follows that defendant’s notice of appeal was not timely filed. Because the time limit
prescribed by Rule 4(b) is mandatory and jurisdictional, we lack jurisdiction to hear defendant’s
appeal. United States v. Dotz, 455 F.3d 644, 647 (6th Cir. 2006). Lacking jurisdiction, we have no
alternative but to dismiss the appeal. Accordingly, defendant’s appeal is hereby DISMISSED.
effectively afforded defendant 14 calendar days within which to file notice of appeal.
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