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

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ELUTERIO MAURO LEIJANO-CRUZ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

m 2:04-CR-308-ALL

______________________________

Before JONES, Chief Judge, SMITH and 

STEWART, Circuit Judges. 

JERRY E. SMITH, Circuit Judge:

Eluterio Leijano-Cruz wassentenced for illegal reentry but did not file a notice of appeal

or motion to extend the time to file a notice of

appeal within the time set forth in FederalRule

of Appellate Procedure 4(b). The district

court sua sponte invoked rule 4(b)’stime limit

and denied Leijano-Cruz’s motion for extension of time to file. Leijano-Cruz appeals that

denial. We affirm.

I.

Leijano-Cruz is a Mexican citizen who reentered the United States after being removed.

He wasfirst deported in February2004; before

his deportation, he had been convicted of

assault. In March 2004 he was found in Texas

and pleaded guilty of illegal reentry under
2

8 U.S.C. § 1326. A judgment of sentence was

entered on October 21, 2004.

The 10-day period for 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 after the 10

days provided in rule 4(b)(1)(A)).2

On December 7 the Federal Public Defender filed a notice of appeal on Leijano-Cruz’s

behalf, and on December 10 he filed a motion

to extend the time to file a notice of appeal

pursuant to rule 4(b)(4), urging the district

court to find that the late notice of appeal resulted from excusable neglect. The government, though served, did not respond to the

motion.

The court denied the motion to extend,

finding that the date the motion was filed was

“beyond whatever statutory power the Court

maypossessto extend Defendant’s deadline to

file a notice of appeal.” The court added that

“no showing has been made of good cause or

excusable neglect that would allow this Court

to extend the deadline if it could.” LeijanoCruz appeals the denial, arguing that rule 4(b)

is a non-jurisdictional claim-processing rule

that the government forfeited by failing to object to his motion for extension.

II.

This court has traditionally held that rule

4(b) is jurisdictional and thus cannot be forfeited or waived, so we cannot hear an appeal

if a party fails to comply with its 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 traditional view. 

In Eberhart the Court held that rule 33(a),

which allows a district court to vacate a judgment and grant a motion for a new trial 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. 

FED. 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 maySSbefore or after

the time has expired, with or without motion

and noticeSSextend 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).

FED. 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 jurisdiction on

appeal.”); United States v. Awalt, 728 F.2d 704,

705 (1984) (“Courts cannot extend the time period

beyond the forty-day time period prescribed by

Rule 4(b). To have the opportunity to seek relief

by showing excusable 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

mandatory and jurisdictional, his appeal must be

dismissed.”).
3

party complies with its strict time limitation,

does not delimitsubject-matterjurisdiction but

is an inflexible claim-processing rule. In that

case, the defendant filed a supplemental memorandum supporting his motion for a new trial

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 merits, but the district court granted it. Id.

The court of appeals reversed the award of a

new trial, holding that the district court lacked

jurisdiction to grant one, but the Supreme

Court reversed, stating that the government

had forfeited its right to raise the defense of

untimeliness. Id. at 404, 407. 

The outcome of Eberhart is less important

for resolving this case than is its discussion of

United States v. Robinson, 361 U.S. 220

(1960), which involved an untimely notice of

appeal under Federal Rule of Criminal Procedure 37, which isthe predecessor to rule 4(b).4

See Eberhart, 126 S. Ct. at 406. In Robinson,

the defendant filed a notice of appeal eleven

days after the deadline in rule 37; the government objected to the untimeliness, and the

court of appeals held that the district court

could extend the time to file a notice of appeal

(pursuant to Federal Rule of Civil Procedure

45(b)) if the untimeliness was on account of

excusable neglect. Robinson, 361 U.S. at

221-22. 

TheSupremeCourt disagreed and reversed,

citing the rule stated in circuit court cases on

the issue: “[T]he filing of a notice of appeal

within the 10-day period prescribed by Rule

37(a)(2) is mandatory and jurisdictional.” Id.

at 224. In Eberhart, 546 U.S. at __, 126 S.

Ct. at 406, the Court explained that “Robinson

is correct not because the district court lacked

subject-matter jurisdiction, but because district courts must observe the clear limits of the

Rules of Criminal Procedure when they are

properly invoked.” The Court further explicated “the central point of the Robinson case”

by stating that

when the Government objected to a filing

untimely under Rule 37, the court’s duty to

dismissthe appeal was mandatory. The net

effect of Robinson, viewed through the

clarifying lens of Kontrick, is to admonish

the Government that failure to object to untimely submissions entails forfeiture of the

objection, and to admonish defendants that

timeliness is of the essence, since the Government is unlikely to miss timeliness defects very often. 

Id. at 406-07. 

From Eberhart’s discussion of Robinson,

one might conclude that rule 4(b) is nonjurisdictional, but no court of appeals has yet done

so,5and we find it unnecessary to take that

4 The Advisory Committee Notes from rule

4(b)’s 1967 adoption make plain that it merely restates rule 37: “Subdivision (b). This subdivision

is derived from FRCrP 37(a)(2) [rule 37(a)(2),

Federal Rules of Criminal Procedure] without

change of substance.” 

5 Other circuits have recognized that Eberhart

affectsrule 4(b) but have refused to decidewhether

rule 4(b) is jurisdictional. See, e.g., United States

v. Carelock, 459 F.3d 437, 440 n.6 (3d Cir. 2006)

(“Although the language and commentary of the

rules, 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 may 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 that a district court’s decision to permit an untimely

document to be considered could not be reversed in the absence of an objection by the

government in the district court. Eberhart

does not hold that a defendant, as appellant

from a decision that forbade his pursuing an

untimely noticed appeal, has a right to have the

untimeliness disregarded. 

In other words, the district court does not

err, after Eberhart, if it enforces an inflexible

claim processing rule, and we may not reverse

its decision to do so. Irrespective of whether

the government noted the untimeliness in the

district court, it is the defendant’s burden on

appeal to show that the court erred in enforcing the rule.

On the facts of this case, the outcome is obvious. Leijano-Cruz did not file a timely notice of appeal, and as the district court noted,

he utterly failed to assert any ground for excusable neglect. The district court could correctly enforce the time limits, regardless of

whether they are jurisdictional. Irrespective of

which standard of review is employed, the

court neither erred nor reversibly erred in its

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 fromthose in criminal cases, because notices

in civil cases are governed by a statutorily-based

time limit. Under Eberhart, there is a strong rule

that FederalRule of Appellate Procedure rule 4(a),

governing civil appeals, is jurisdictional. See

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

throughmistake, courtesy, or grace,” becauseCongress limited the courts of appeals’ jurisdiction for

civil cases in 28 U.S.C. § 2107, a statute distinct

from rule 4(a)), cert. granted, 2006 U.S. LEXIS

9445 (U.S. Dec. 7, 2006).