United States v. Peter Christian Boulette

USCA11 Case: 20-14796 Date Filed: 11/16/2021 Page: 1 of 3
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14796
Non-Argument Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PETER CHRISTIAN BOULETTE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:06-cr-00131-RDP-HNJ-1
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USCA11 Case: 20-14796 Date Filed: 11/16/2021 Page: 2 of 3
2 Opinion of the Court 20-14796-AA
Before JILL PRYOR, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
On October 21, 2020, the district court entered an order
denying Peter Boulette’s motion for compassionate release under
18 U.S.C. § 3582(c)(1)(A). Under criminal timeliness rules, Bou-
lette had 14 days to file a notice of appeal, i.e., until November 4,
2020. See Fed. R. App. P. 4(b)(1); see also United States v. Fair,
326 F.3d 1317, 1318 (11th Cir. 2003) (explaining that a motion un-
der 18 U.S.C. § 3582(c)(2) is criminal in nature). The deadline in
Rule 4(b) for a defendant to file a notice of appeal in a criminal
case is not jurisdictional. United States v. Lopez, 562 F.3d 1309,
1313 (11th Cir. 2009). Instead, the filing deadline is considered a
claims-processing rule, and the government can waive an objec-
tion to an untimely notice of appeal. Id. at 1312–13. Neverthe-
less, if the government raises the issue of timeliness, then we
“must apply the time limits of Rule 4(b).” Id. at 1313–14.
In its brief, the government argues that this appeal should
be dismissed as untimely. Indeed, Boulette’s signed notice of ap-
peal is dated December 2, 2020. Absent evidence that Boulette
provided his notice of appeal to prison authorities for mailing at
an earlier date, the notice of appeal is deemed filed on December
2 and is, therefore, untimely. See Fed. R. App. P. 4(c)(1)(A); Jef-
fries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014). How-
ever, in criminal cases, we have customarily treated a late notice
USCA11 Case: 20-14796 Date Filed: 11/16/2021 Page: 3 of 3
20-14018 Opinion of the Court 3
of appeal that is filed within the 30 days during which an exten-
sion is permissible as a motion for an extension of time and re-
manded to the district court for a finding of good cause or excus-
able neglect. See Fed. R. App. P. 4(b)(4); United States v. Ward,
696 F.2d 1315, 1317-18 (11th Cir. 1983); United States v. Rothsei-
den, 680 F.2d 96, 98 (11th Cir. 1982).
Because Boulette’s notice of appeal was filed after the 14-
day appeal period but within the next 30 days, we REMAND the
case to the district court for the limited purpose of allowing the
court to determine whether Boulette has shown excusable neglect
or good cause warranting an extension of the appeal period. Fol-
lowing this limited remand, the record as supplemented will be
returned to this Court for further consideration. We defer ruling
on the government’s request to dismiss pending the limited re-
mand.