United States v. Jeff McGrue

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 25 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50339
Plaintiff-Appellee, D.C. No. 2:08-cr-01318-ODW-1
v.
MEMORANDUM*
JEFF MCGRUE,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, II, District Judge, Presiding
Submitted January 19, 2022**
Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.
Jeff McGrue appeals pro se from the district court’s orders denying his
motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) and motion
for reconsideration. We dismiss McGrue’s appeal as untimely.
Giving McGrue the benefit of the mailbox rule, he filed his notice of appeal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
39 days after the district court’s order denying his motion for reconsideration, well
outside the 14-day deadline. See Fed. R. App. P. 4(b)(1)(A). We decline to
remand for the district court to determine whether to grant appellant an extension
of time to file the notice of appeal, see Fed. R. App. P. 4(b)(4); United States v.
Ono, 72 F.3d 101, 103 (9th Cir. 1995) (order), because McGrue waived any
challenge to the district court’s denial of compassionate release by failing to
challenge that denial in his opening brief. See United States v. Perez-Silvan, 861
F.3d 935, 938 (9th Cir. 2017) (declining to remand for the district court to
determine if there was excusable neglect for the untimely notice of appeal because
appellant waived his challenge to the revocation of supervised release by failing to
raise any arguments concerning the revocation in his opening brief). Because the
government properly objected to McGrue’s untimely notice of appeal, we must
dismiss. See United States v. Sadler, 480 F.3d 932, 942 (9th Cir. 2007).
McGrue’s motions to strike and to certify a question to the United States
Supreme Court, along with any other pending motions, are denied.
DISMISSED.
2 20-50339