United States v. Lopez-Reynoso

Case: 21-50168 Document: 00516003599 Page: 1 Date Filed: 09/07/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 7, 2021
No. 21-50168 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Gustavo Adolfo Lopez-Reynoso,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:16-CR-77-1
Before Southwick, Graves, and Costa, Circuit Judges.
Per Curiam:*
Gustavo Adolfo Lopez-Reynoso appeals the district court’s denial of
his motion for reconsideration of the denial of his motion for compassionate
release under 18 U.S.C. § 3582(c)(1)(A)(i). His notice of appeal is untimely
*
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opinion should not be published and is not precedent except under the limited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: 21-50168 Document: 00516003599 Page: 2 Date Filed: 09/07/2021
No. 21-50168
because it was filed 34 days after entry of the underlying order. See Fed.
R. App. P. 4(b)(1)(A)(i).
The Government moves to dismiss the appeal based on the untimely
notice of appeal and, alternately, moves for an extension of time to file its
brief. 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).
A district court may extend the time to file a notice of appeal for 30
days based on a finding of excusable neglect or good cause. Fed. R. App.
P. 4(b)(4). Lopez-Reynoso’s notice of appeal, filed within this 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. The
Government’s motion to dismiss or, alternately, for an extension of time to
file its brief, is CARRIED WITH THE CASE.
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