United States v. Jose Arias-Macedo

Case: 09-50957 Document: 00511222276 Page: 1 Date Filed: 09/01/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 1, 2010
No. 09-50957
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ARIAS-MACEDO,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
No.5:09-CR-183-1
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jose Arias-Macedo appeals his sentence. The government argues that the
appeal should be dismissed as untimely.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-50957 Document: 00511222276 Page: 2 Date Filed: 09/01/2010
No. 09-50957
The notice of appeal was due within 10 days after the entry of the judg-
ment of conviction. F ED. R. A PP. P. 4(b)(1)(A)(i) (2008). In a criminal case, a dis-
trict court may extend the time for filing a notice of appeal for an additional 30
days on a finding of good cause or excusable neglect. F ED. R. A PP. P. 4(b)(4). In
criminal cases, a notice of appeal filed within this additional 30-day period is
customarily treated as a motion under F ED. R. A PP. P. 4(b)(4). United States v.
Golding, 739 F.2d 183, 184 (5th Cir. 1984). In Arias-Macedo’s case, however, the
additional period ended in August 2009, well before Arias-Macedo filed his notice
of appeal in October 2009. Therefore, the notice of appeal is untimely.
In a criminal case, the untimely filing of a notice of appeal is not jurisdic-
tional and can be waived. See United States v. Martinez, 496 F.3d 387, 388-89
(5th Cir. 2007). Because, however, the government has challenged the timeli-
ness of the notice of appeal, the appeal is DISMISSED. See United States v.
Gray, 332 F. App’x 192, 193 (5th Cir. 2009).
2