United States Court of Appeals Fifth Circuit 

## FILED December 20, 2006 Charles R. Fulbruge III Clerk 

## In the 

# United States Court of Appeals for the Fifth Circuit

_______________


### m 05-50280

_______________



### U NITED 

### S TATES OF 

### AMERICA 

### , Plaintiff-Appellee 

### , VERSUS


### E LUTERIO 

### M AURO 

### L EIJANO 

### -C RUZ 

### , Defendant-Appellant



### .

_________________________ Appeal from the United States District Court fo r the Western District of Texas 

### m 2:04-CR-308-ALL

______________________________

Before J ONES , Chief Judge, S MITH and S TEWART , Circuit Judges.
J ERRY E. S MITH , Circuit Judge:
El uterio Leijano-Cruz was sentenced fo r illegal reentry but did not file a notice of appeal or mo tion to extend the time to file a notice of appeal wit hin the time set fo rth in Federal Rule o f Appellate Procedure 4(b). The dist ri ct court sua sponte invo ked rule 4(b)’s time limit and denied Leijano-Cruz’s mo tion fo r extensio n of time to file. Leijano-Cruz appeals that denial. We affirm.
I. Leijano-Cruz is a Mexican cit izen who reentered the Unit ed States aft er being removed. He was fir st deported in February 2004; before his deportation, he had been convicted o f assault. In March 2004 he was found in Texas and pleaded guilt y of illegal reentry under2

8 U.S.C. § 1326. A judgment of sentence was entered on October 21, 2004.
The 10-day period fo r filing notice of appeal under rule 4(b)(1 ) expired on November 4. 1 The 30-day period for extending the time to file notice of appeal under rule 4(b)(4) ended on December 6 (30 days aft er th e 10 days provided in rule 4(b)(1)(A)). 2
On December 7 the Federal Pu blic Defender filed a notice of appeal on Leijano-Cruz’s behalf, and on December 10 he filed a mo tion to extend the time to f

ile a no tice of appeal pursuant to rule 4(b)(4), urging th e di strict court to f ind th at the lat e notice of appeal resulted from excusable neglect. The government , th ough ser ved, did not respond to the mo tion. The court denied the mo tion t o extend, finding t hat the date the mo tion was filed was

“beyond whatever statutory power the Court may possess to extend Defendant’s deadline to file a notice of appeal.” The court added th at “no showing has been made of good cause or excusable neglect th at would allo w this Court to extend the deadline if it could.” LeijanoCruz appeals the denial, arguing th at rule 4(b) is a non-jurisdictional claim-processing rule th at the government fo rfeited by failing to object to his motion for extension.

II. This court has tra dit ionally held t hat rule 4(b) is jurisdictional and thus cannot be forfeit ed or waived, so we cannot hear an appeal if a party f

ails t o c om

ply wit h it s timing requirements. 3 The decision in Eberhart v. United States , 546 U.S. 12, 126 S. Ct. 403 (2005) (per curiam), however, casts doubt on our tradit io nal view.
In Eberhart the Court held that rule 33(a), which allo ws a district court to vacate a judgment and grant a mo tion fo r a new tri al if a 1 Rule 4(b)(1)(A) sets the time within which a criminal defendant must file a notice of appeal:In a criminal case, a defendant’s notice of appeal must be filed in the district court within 10 days after the later of: (i) the entry of either the judgment or the order being appealed; or (ii) the filing of the government’s notice of appeal.
F ED

. R. APP

. P. 4(b)(1)(A).

2 Rule 4(b)(4) states: Upon a finding of excusable neglect or good cause, the district court may SS before or after the time h as expired, with or without motion and noti ce SSextend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).
F ED

. R. APP

. P. 4(b)(4). 3 See, e.g. , United States v. Golding , 739 F.2d 183, 184 (5th Cir. 1984 ) (“We are compelled to raise sua sponte the issue of timeliness for a timely notice of appeal is essential to our juri sdiction on appeal.”); United States v. Awalt , 7 28 F.2d 704, 705 (1984) (“Courts cannot extend the time period beyond the forty-day t ime period prescribed by Rule 4(b). To have the opportunity to seek relief by showing excus able neglect, the late notice or some other filing evidencing an intention to appeal must be filed within the forty -day period. . . . Because Awalt’s notice of appeal was not filed in time and because compliance with Rule 4(b) is ma n datory and jurisdictional, his appeal must be dismissed.”).3

party com

plies wit h it s strict time limit ation, does not delimit subject-matter jurisdiction but is an inflexible claim-processing rule. In that case, the defendant filed a supplemental memorandum supporting his mo tion fo r a new tri al six months after the deadline set out in rule 33(a). Eberhart , 546 U.S. at __, 126 S. Ct. at 404. The government opposed the motion on the merit s, but the district court granted it

. I d. The court of appeals reversed the award of a new tri al, holding th at the district court lacked jurisdiction to grant one, but the S upreme Court reversed, statin g th at the government had forfeited its right to raise the defense of untimeliness. Id. at 404, 407.
The outcom

e of Eberhart is less impo rtant fo r resolving t his case th an is it s discussion of United States v. Robinson , 361 U.S. 220 (1960), which involved an untimely notice ofappeal under Federal Rule of Criminal Procedure 37, which is the predecessor to rule 4(b). 4 See Eberhart , 126 S. Ct. at 406. In R obinson , the defendant filed a no ti ce of appeal elevendays after the deadline in rule 37; the government objected to the untimeliness, and the court of appeals held th at the district court could extend the time to file a notice of appeal (pursuant t o Federal Rule of Civil Procedure 45(b)) if the untimeliness was on account of excusable neglect. R obinson , 361 U.S. at 221-22.
The Supreme Court disagreed and reversed, cit ing the ru le stated in circuit court cases on the issue: “[T]he filing of a not ice of appeal wit hin the 10-day period prescribed by Rule 37(a)(2) i s mandatory and jurisdictional.” Id. at 224. In Eberhart , 546 U.S. at __, 126 S. Ct. at 406, the Court explained th at “ Robinson is correct not because the district court lacked subject-matter jurisdiction , but because district courts must observe the clear limit s of the Rules of Criminal P rocedure when they are properl y invo ked.” The Court further explicated “t he central point of the Robinson case” by st ating that
when th e Governm

ent objected to a filing untimely under Rule 37, the court’s duty to dismiss the appeal was mandatory. The net effect of Robinson , viewed through the clarifying lens of Kontrick , is to admonish the Government th at failure to object to untimely submissio ns entails fo rfeiture of the objection, and to admonish defendants th at timeliness is o f t he essence, since the Government is unl

ikely to m

iss t imeliness defects very often.
Id. at 406-07.
From Eberhart ’s discussion of Robinson , one might conclude th at rule 4(b) is nonjurisdictional, but no court of appeals has yet done so, 5 and we find it unnecessary to take that

4 The Advisory Committee Note s from rule 4(b)’s 1967 adoption make plain that it mer ely re
states rule 37: “Subdivision (b). This subdivision is derived from FRCrP 37(a)(2) [rule 3 7(a)(2), Federal Rules of Criminal Procedure] without change of substance.” 5 Other circuits have recognized that Eberhart affects rule 4(b) but have refused to decide whether rule 4(b) is jurisdictional. S ee, e.g. , United States
v. Carelock , 459 F.3d 437, 440 n.6 (3d Cir. 2006) (“Although the language and commentary of therules, along with their prior treatment by the Supreme Court and this Court, strongly support the conclusion that Rules 3 and 4 govern subject-matter jurisdiction, we need not answer this question at this time because waiver is not implicated here.”); United States v. Smith , 438 F. 3d 796, 801 (7th Cir. 2006) (recognizing that Eberhart ma y change (continued...)4

step here. This is because, even if Eberhart applies to notices of appeal in criminal cases, 6 the Supreme Court there held only th at a district court’s decision to permit an untimely docum ent to be considered could not be reversed in the abse nce of an objection by the government in the district court. Eberhart does not h old that a defendant, as appellant from a decision th at f

orbade his pursuing an untimely noticed appeal, has a right to have the untimeliness disregarded.
In other words, the di s trict court does not err, aft er Eberhart , if it enforces an inf lexible claim processing rule, and we may not reverse it s decision to do so. Irrespective of whether the government noted the untimeliness in the distr ict court, it i s the defendant’s burden on appeal to show th at the court erred in enforcing t he rule.
On the facts of this case, the outcom e is obvio us. Leijano-Cruz did not file a timely notice of appeal, and as the district court noted, he utterl y failed to assert any ground fo r excusable neglect. The district court could corr e ctl y enforce the time limit s, regardless of whether they are jurisdictional. Irrespective of which standard of review is e mplo yed, the court neit her erred nor reversibly erred in it s denial of the rule 4(b)(4) motion.
AFFIRMED.

5 (...continued) rule 4 ( b) but declining to decide whether it is jurisdictional).

6 Notices of appeal in civil cases might be different from those in criminal cases, because notices in civil cases are governed b y a statutorily-based time limit. Under E

berhart , there is a strong rule that Federal Rule of Appellate Procedure rule 4(a), governin g civil appeals, is jurisdictional. S ee Bowles v. Russell , 432 F.3d 668, 669, 672 n.1 (6th Cir. 2005) (holding that “the fourteen-day period of Rule 4(a) (6) . . . is not susceptible to extension through mistake, courtesy, or grace,” because Congress limited the courts of appeals’ jurisdiction for civil cases in 28 U .S.C. § 2107, a statute distinct from rule 4(a)), cert. gran ted , 2006 U.S. LEXIS 9445 (U.S. Dec. 7, 2006).