UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MARTIN NUNEZ, Defendant - Appellant. No. 17-2106 (D.C. No. 2:16-CR-02798-KG-1) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , HARTZ , and BACHARACH , Circuit Judges.

________________ _________________ Defendant Martin Nunez pleaded guilty to one count of possession with intent to distribute methamphetamine, in violati on of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and was sentenced to a term of imprisonm ent of 108 months. Nunez now appeals, arguing that his sentence is substantively unreasonable. We dismiss his appeal as untimely filed and thus do not r each the merits of the appeal.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 15, 2018
Elisabeth A. Shumaker Clerk of Court2 I On June 22, 2016, a federal grand ju ry indicted Nunez on one count of possessing with intent to distribute 500 gr ams or more of a mixture and substance containing a detectable amount of metham phetamine, in viola tion of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and 18 U.S.C. § 2. On September 20, 2016, Nunez pleaded guilty to the single charge alleged in the indictment. A presentence investigation report (PSR ) was prepared and submitted to the district court and the partie s on December 5, 2016. The PSR calculated an advisory Guidelines sentencing range of 135 to 168 months based on a total offense level of 33 and a criminal history category of I. Nunez objected to the PSR’s impositi on of a two-level enhancement for possession of a dangerous weapon, pursuant to U.S.S.G. § 2D1.1(b)(1). Nunez also moved for a downward variance from the a dvisory Guidelines sentencing range. Specifically, Nunez asked the district cour t to vary downward from a total offense level of 33 to a total offense level of 29, which would result in an advisory Guidelines sentencing range of 87 to 108 months. Nunez argued that this would result in a sentence “suffici ent, but not greater than n ecessary to comp ly with the purposes set forth in 18 U.S.C. § 3553( a) and would be re asonable under United States v. Booker, 543 U.S. 220 (2005).” ROA, Vol. I at 14 (footnote omitted). In support of his request for a downward va riance, Nunez argued that “[h]e and his fiancé have an infant daug hter” who was “born Novemb er 13, 2016,” and he “is actively involved in his young da ughter’s li[f]e.” Id. N unez argued that his fiancé3 “need[ed] [him] at home to co -parent the child and financia lly maintain a household.” Id. at 15. Nunez also argued that his moth er needed his assistance in running “their family carwash business a nd rentals.” Id. at 14. The district court held a sentencing h earing on April 11, 2017. The district court agreed with Nunez that there was insufficient evid ence to allow it to find that the firearm that was seized from his resi dence was possessed in connection with the offense of conviction. Id. at 25. That determination reduced Nunez’s total offense level to 31, and his advisory Guidelines sentencing range to 108 to 135 months. The district court rejected Nun ez’s motion for downward varian ce, declining to “find that the impact on [his] family [w a]s extraordinary.” Id. U ltimately, the district court sentenced Nunez to a term of imprisonment of 108 months, to be followed by a fiveyear term of supe rvised release. Final judgment in the case was entered on April 11, 2017. Nunez filed a pro se notice of appeal on June 22, 2017.
II The government argues in its appellate response br ief, and Nunez concedes, that the notice of appeal was untimely. Federal Rule of Appellate Procedure 4(b)(1)(A) states: In a criminal case, a defendant’s no tice of appeal must be filed in the district court within 14 days after the latter of: (i) the entry of either the judgmen t or the order being appealed; or (ii) the filing of the gove rnment’s notice of appeal.4 Fed. R. App. P. 4(b)(1)(A). As not ed, the judgment in Nunez’s case was entered on April 11, 2017, and Nunez did not file his notice of appeal until June 22, 2017, well past the fourteen-day time period outlined in Rule 4(b)(1)(A). Although Rule 4(b)(1)(A) is not jurisdictional, it is ne vertheless an “inflexible claim-processing rule[]” that “must be enforced by this court when properly invoked by the government.” United States v. Mi tchell, 518 F.3d 740, 74 4 (10th Cir. 2008). The government in this case properl y invoked Rule 4(b)(1)(A) by arguing its appellate response brief that Nunez’s notic e of appeal was untimely. See United States v. Garduño, 506 F.3d 1287, 1292 (10th Cir. 2007). Nunez claims in his appella te reply brief that “the delayed filing was not his fault” because, due to “m ultiple transfers between di fferent facilities after his sentencing, [he] did not have an opportunity to consult with his trial counsel about filing a Notice of Appeal.” Aplt. Reply Br . at 1. He does not , however, provide any details about these transfers. Nor does he provide an affidavit from his trial counsel confirming these allegations or otherwise explaining why a timely notice of appeal was not filed. Consequently, we must en force the provisions of Rule 4(b)(1)(A) as invoked by the government. The appeal is DISMISSED as untimely.

Entered for the Court
Mary Beck Briscoe Circuit Judge