United States v. Donnell Thomas , 711 F. App'x 853 ( 2017 )

FILED
NOT FOR PUBLICATION
OCT 19 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50244
Plaintiff-Appellee, D.C. No.
3:16-cr-02557-BEN-1
v.
DONNELL THOMAS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted October 5, 2017
Portland, Oregon
Before: O’SCANNLAIN, PAEZ, and BEA, Circuit Judges.
Donnell Thomas appeals the district court’s order extending his pretrial
commitment. Because Thomas did not file the notice of appeal within fourteen
days of the district court’s order as required by Federal Rule of Appellate
Procedure 4(b), we dismiss it as untimely.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Following a competency evaluation and hearing, the district court found
Thomas incompetent to stand trial. Pursuant to 18 U.S.C. § 4241(d)(1), the court
committed Thomas to a mental health facility for up to 120 days to determine
whether there was a substantial probability he could attain competency in the
foreseeable future. Over Thomas’s objection, the court subsequently extended his
commitment under section 4241(d)(2)(A) by up to 120 additional days, stating in
its order that “there is a substantial probability that with an additional 120 days of
commitment the Defendant will attain the capacity to permit the proceedings to go
forward.”1 Forty-five days after the court entered the extension order, Thomas
filed his notice of appeal.
On appeal, Thomas challenges the extension order on statutory and
constitutional grounds, arguing, inter alia, that prior to extending his commitment
the district court was required to hold a hearing to determine whether there was a
substantial probability that he would attain competency within an additional
reasonable time. The extended commitment period was set to expire on November
11, 2017, but while this appeal was pending, Thomas’s primary clinician
determined that he had attained competency, thus triggering discharge proceedings
1
The district court later acknowledged that it may not have noticed
Thomas’s objection before signing the extension order.
2
and a competency hearing before the district court. See §§ 4241(e), 4247(d). The
government moved to dismiss this appeal, arguing that the primary clinician’s
determination rendered it moot.
We do not reach the merits or decide whether this appeal is moot, because
we dismiss it as untimely under Rule 4(b). Rule 4(b) is an “inflexible claim
processing rule.” United States v. Sadler, 480 F.3d 932, 940 (9th Cir. 2007).
Thus, if a defendant in a criminal case fails to file a notice of appeal within
fourteen days of the entry of the order being appealed, dismissal is required unless
the government forfeits the defense. Id. at 941-42; see Fed. R. App. P. 4(b)(1)(A).
The defense of untimeliness is not forfeited when, as here, the government raises it
in an appellate brief. Sadler, 480 F.3d at 941.
The district court entered the extension order on the docket on May 19,
2017. Under Rule 4(b), Thomas had until June 2, 2017 to file his notice of appeal.
Instead, he filed his notice of appeal on July 3, 2017, a month past the deadline.
Thomas argues that he filed his notice of appeal from an order entered at a
hearing held before the district court on June 26, 2017. Thomas asserts that the
actual order he appealed can be inferred fairly from the notice of appeal, which
describes the order under appeal as the “Court’s order to extend time under 18
U.S.C. § 4241 entered in this proceeding on the 26th day of June[,] 2017.”
3
We reject this argument because the district court did not enter the
commitment extension order, or any other order, on June 26, 2017. The record
reflects that the district court did not intend to hold a hearing on that date, having
previously vacated and rescheduled it to November 13, 2017, as part of the
commitment extension order. Nonetheless, for reasons that are unclear, the hearing
remained on the calendar and counsel appeared. At the hearing, the district court
declined to reconsider the extension order over the “objection” orally renewed by
Thomas’s counsel.2 The district judge did not state that he was entering an order at
the hearing, nor does the minute entry on the docket sheet state that an order was
entered. Thus, the minute entry did not constitute an order for notice of appeal
purposes. See Ingram v. AcandS, Inc., 977 F.2d 1332, 1338-39 (9th Cir. 1992).
Finally, Thomas requests in the alternative that we remand this case to the
district court to determine whether excusable neglect warrants a thirty-day
extension of the appeal period, which would render this appeal timely by one day.
See Rule 4(b)(4). We decline to do so here.
DISMISSED.
2
Thomas’s counsel purported to raise an oral objection at the hearing, but
counsel was instead “taking an exception” to the court’s previous order. See
United States v. Mancinas-Flores, 588 F.3d 677, 686 (9th Cir. 2009).
4