UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. HUMBERTO BELTRAN-FLORES, Defendant - Appellant. No. 14-6227 (D.C. No. 5:14-CR-00089-C-2) (W.D. Okla.)

ORDER AND JUDGMENT *

Before HARTZ , GORSUCH , and MORITZ , Circuit Judges.
Pursuant to a plea agreement with a broad appeal waiver, Humberto Beltran-Flores pleaded guilty to one count of possession of methamphetamine with intent to distribute, in viol ation of 21 U.S.C. § 841(a)(1). The district court entered judgment on September 25, 2014, and, despite his appeal waiver, Mr. Beltran-Flores filed a pro se notice of appeal on December 1. The government has moved to enforce the appeal waiver under United States v. Hahn , 359 F.3d 1315 (10th Cir. 2004)

* This panel has determined that oral ar gument would not materially assist 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 ma y be cited, however, for its persuasive value consistent with Fed. R. App. P. 32. 1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 13, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - (en banc) (per curiam), or to di smiss the appeal as untimely under Fed. R. App. P. 4(b)(1)(A)(i). We appointed new counsel to represent Mr. Beltran-Flores in this ma tter. In light of the par ties’ arguments, we grant the government’s motion to dismiss the appeal as untimely. Under Rule 4(b)(1)(A)(i), a criminal defendant must file a notice of appeal “within 14 days after the later of: (i) the entry of either the judgment or the order being appealed.” Rule 4(b) is not juri sdictional, but is one of the “inflexible claim-processing rules, which, unlike a ju risdictional rule, may be forfeited if not properly raised by the government.” United States v. Garduño , 506 F.3d 1287, 1291 (10th Cir. 2007) (brackets om itted) (internal quotation mark s omitted). As a result, the inflexible deadline in Ru le 4(b)(1)(A) “assure[s] relief to a party properly raising” it. Garduño , 506 F.3d at 1291. Mr. Beltran-Fl ores filed his notice of appeal sixty-seven days after the district court entered the judgment. Mr. Beltran-Flores argues that the government waived its objection to the untimely filing of the notice of appeal by faili ng to move to dismi ss the appeal within fourteen days, as provided in 10th Cir. R. 27.2(A)(1)(a) & (3)(a). We noted in Garduño that “when the government recognizes a violation of Rule 4(b)(1)(A), it should consider filing a mo tion for dismissal under Fede ral Rule of Appellate Procedure 27 and 10th Circuit Ru le 27.2(A)(1)(a) . . . .” Garduño , 506 F.3d at 1292 n.7. But we also pointed out that the proc edural rules do not require that a motion to dismiss a criminal appeal as untimely be made earlier th an the government’s response- 3 - brief. Id. at 1292. We concluded th at a “[f]ailure to invoke Rule 27.2(A)(1)(a) . . . does not constitute a forfeiture where . . . the appellee seek s dismissal for failure to timely appeal in its response brief.” Garduño , 506 F.3d at 1291 n.7. Similarly, the government raised the untimel iness of the notice of appeal in this case in its motion to enforce the appeal waiv er. We conclude that th e issue is not forfeited. See id. We grant the government’s motion to di smiss the appeal as untimely. The appeal is dismissed. Entered for the Court Per Curiam