* 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should not be published and is not precedent except under the limited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.

REVISED SEPTEMBER 1, 2009

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10593

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

GONZALO GANDARA, also known as G-G

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:06-CR-86-3

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Gonzalo Gandara appeals his conviction and sentence of ten years of

imprisonmentfor using a short-barreled shotgun during a crime of violence. We

previously remanded this case to the district court for a determination whether

Gandara could show good cause or excusable neglect for his untimeliness under

FED. R. APP. P. 4(b)(1)(A). Although the district court found that Gandara had

not made the necessary showing, the Government now urges that we ignore any

United States Court of Appeals

Fifth Circuit

F I L E D

August 12, 2009

Charles R. Fulbruge III

Clerk
No. 07-10593

2

possible Rule 4 violation and address the merits of Gandara’s appeal. Such a

course is permissible; although the Rule 4 deadline is mandatory, it is not

jurisdictional because it does not derive from a statute. United States v.

Martinez, 496 F.3d 387, 388-90 (5th Cir.) (holding that a late notice of appeal is

not a jurisdictional bar and affirming sentence on the merits), cert. denied, 128

S. Ct. 728 (2007). We so proceed.

Gandara argues that, because his indictment did not specify that he used

a short-barreled shotgun, his trial counsel was ineffective for failing to object to

the district court’s determination that his statutory minimum sentence was ten

years of imprisonment pursuant to § 924(c)(1)(B)(i). To prevail on a claim of

ineffective assistance of counsel, a petitioner must show (1) that his counsel’s

performance was deficient in that it fell below an objective standard of

reasonableness, and (2) that the deficient performance prejudiced his defense.

Strickland v. Washington, 466 U.S. 668, 689-94 (1984). We resolve Gandara’s

claim on direct appeal only because it presents a rare instance when we are able

to “evaluate fairly the merits of the claim.” United States v. Nguyen, 504 F.3d

561, 575 (5th Cir. 2007) (internal quotation marks and citation omitted), cert.

denied, 128 S. Ct. 1324 (2007).

While this court has not decided the issue, atleast one of our sister circuits

has held that the type of firearm used in a § 924(c)(1)(B) offense constitutes an

element of the offense that must be included in the indictment and proven to a

jury when not admitted by the defendant. United States v. Harris, 397 F.3d 404,

410-414 (6th Cir. 2005) (addressing the effects of United States v. Booker, 543

U.S. 220 (2005), on § 924(c)(1)(B) analysis). We need not resolve the issue in

this case, however, because, even assuming that the use of a short-barreled

shotgun was an element of Gandara’s offense, his conviction and sentence are

not invalid; he admitted that he used a short-barreled shotgun in the factual

basis for his guilty plea. See Booker, 543 U.S. at 232, 244. Gandara does not

contend that counsel was ineffective in advising him regarding his guilty plea
No. 07-10593

3

or the plea agreement. Accordingly, Gandara’s counsel did not render ineffective

assistance by failing to object at sentencing regarding the consideration of

Gandara’s use of a shotgun. See Clark v. Collins, 19 F.3d 959, 966 (5th Cir.

1994) (“Failure to raise meritless objections is not ineffective lawyering; it is the

very opposite.”).

AFFIRMED.