PUBLISH UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v. FRANCISCO MENDOZA, Defendant–Appellant. No. 10-4165

Appeal from the United States District Court for the District of Utah (D.C. No. 2:08-CR-00805-DB-1)

Jill M. Wichlens, Assistant Federal Public De fender (Raymond P. Moore, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Denver, Colorado, for the De fendant-Appellant. Elizabethanne C. Stevens, A ssistant United States Attorney , (Carlie Christensen, United States Attorney, with her on the brief), Office of the Unite d States Attorney, Salt Lake City, Utah, for the Plaintiff-Appellee.

Before LUCERO , HOLLOWAY , and MATHESON , Circuit Judges.

LUCERO , Circuit Judge. FILED United States Court of Appeals Tenth Circuit 

### November 7, 2012
Elisabeth A. Shumaker Clerk of Court-2- We must determine whether a judgment ha s been “entered on the criminal docket” for purposes of Fed. R. App. P. 4(b)(6) if it is noted only on an internal district court document that is not publicly accessible. Following sentencing of Francisco Mendoza, the district court filed a sealed judgment on a document labeled “Criminal Docket . . . Internal Use Only.” The crim inal docket available to the public contains no indication that judgment was ever entered. We conclu de that this procedure does not satisfy Rule 4(b)(6). Dockets and docket sheets have traditi onally been considered public documents. Consistent with a centuries-l ong history of public access to dockets, we hold that the phrase “entered on the criminal docket” contem plates public notation that judgment has been entered. Entry on a list of filings main tained for internal court use and inaccessible to the public does not qualify under the ordi nary meaning of Rule 4(b)(6). Because judgment was never entered on Mendoza’s criminal docket, we must reject the government’s contention that his appeal was untimely. Nevertheless, we deny Mendoza’s substantive claim on the merits. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I Mendoza pled guilty to conspiring to di stribute methamphetamine in violation of 21 U.S.C. § 846. In return , the government agreed to recommend that Mendoza be sentenced at the low end of hi s Guidelines range. At the request of a co-defendant, the court sealed Mendoza’s multi-defendant sentencing proceedi ng. During these proceedings, the court calculated Mendoza’s Guid elines range to be 135 to 168 months.-3- Mendoza’s counsel reminded the court that the prosecutor had agreed to recommend a sentence at the low end of th is range, but when given an opportunity to speak, the prosecutor did not do so. Instead, he emphasi zed that Mendoza was a “highest level” drug dealer, possessed firearms, and had been distributing drugs for twenty years. Despite these statements, the cour t sentenced Mendoza to 135 months’ imprisonment, at the bottom of his Guide lines range. Characterizing the selected sentence as “lenient,” the court explained: “I have been on this bench for over fifteen years and I have meted out much longer sent ences in drug cases fo r people with much less involvement in the drug trade by way of admi ssible evidence . . . . This is a bargain, relatively speaking.” On September 3, 2009, the district court filed a sealed judgment. This filing was not noted or reflected in any way on the dock et sheet available to the public. The only evidence in the record that judgment was entered is a supplemental appendix filed by the government which contains a “Criminal Dock et” titled “Internal Use Only.” The docket originally transmitted to us fro m the district court, labele d simply “Criminal Docket,” contains no entries between August 24, 20 09 and October 26, 20 09, when forfeiture proceedings were initiated. In March 2010, Mendoza filed a pro se request for his docket sheet. The court responded in June. On Septem ber 13, 2010, Mendoza filed a pro se notice of appeal in this court. In that filing, Mendoza complains that he was forc ed to request a docket sheet from the district court after he unsuccessfu lly attempted to contact his attorney and-4- noticed “no activity . . . af ter his sentencing” on the publicly accessible docket.
II The government filed a motion to dism iss this appeal, arguing that Mendoza’s notice of appeal was untimely. A defendant choo sing to appeal a crim inal case must file a notice of appeal within fourteen days after “t he entry of either the judgment or the order being appealed.” Fed. R. App. P. 4(b)(1)(A)(i). Alt hough this time limit is not jurisdictional, Rule 4(b) is an “inflexible cl aim processing rule[],” which requires us to grant “relief to a party properly raising” its deadline. United States v. Garduno, 506 F.3d 1287, 1291 (10th Cir. 2007) (quotation omitted). Mendoza filed his notice of appeal more than a year after he was sentenced. Under Rule 4(b), however, the deadline to appeal begins to run not at sentencing but upon entry of judgment. Fed. R. App. P. 4(b)(1)(A)(i). The Rule further provides that “[a] judgment or order is entered for purposes of this Rule 4(b) when it is entered on the criminal docket.” Fed. R. App. P. 4(b)(6 ). The government argues that judgment was “entered on the criminal docket” on September 3, 2009, when the court filed a sealed judgment and noted this fili ng on a document titled “Criminal Docket . . . Internal Use Only.” Mendoza contends that judgment was never entered under Rule 4(b) because the publicly available docket sheet contains no indication that a judgment has issued. Whether Mendoza’s appeal was timely thus turns on the prop er interpretation of Rule 4(b)(6)—a legal issue that we address de novo. See United States v. Roman-Zarate, 115 F.3d 778, 781 (10th Cir. 1997). The fe deral rules do not define the phrase “entered-5- on the criminal docket.” We accordingly look to the ordinary meaning of those words, including dictionary definitions. See United States v. Lain, 640 F.3d 1134, 1137 (10th Cir. 2011). A docket is a formal register ke pt by a court in which proceedings and filings are recorded. See IV Oxford English Dictionary 912 (J.A . Simpson & E.S.C. Weiner, eds., 2d ed. 1989) (defining “docket” as “[a] memorandum or register of legal judgments”); Webster’s Third New Internat ional Dictionary 66 5 (1993) (defining “docket” as “a book of original entries kept by the clerk of a court or quasi-judicial body”). Although contemporar y dictionary definitions do no t expressly require that a docket be publicly accessible, numerous source s indicate that “docket,” as that term is ordinarily used, refers to a public document. Although the parties do not cite any case law addressing the precise issue before us—which itself suggests that judgment is entere d in a public fashion in the vast majority of cases—our independent research has uncove red a single unpublished case on point. In United States v. Osborne, 4 52 F. App’x 294 (4th Cir. 20 11) (unpublished), the court considered whether a 28 U.S.C. § 2255 petition had been timel y filed, which turned on the date the petitioner’s conviction became fi nal. The judgment of conviction did not appear on the publicly accessible district cour t docket. Id. at 295-96. After the court of appeals noted the issue, the district court “m odified its criminal docket sheet ‘to remove court only status’ as to entry of the criminal judgment.” Id. at 295. The Fourth Circuit decided that entry on a “court only” docket did not start the Rule 4(b) clock. Noting that “the keeping of a docket fu lfills a public record-keeping function over and above the-6- giving of notice to a party; and the right of public access in a criminal case extends to documents,” the court concluded that judgme nt was not entered on the criminal docket until the court modified the entr y so that it was accessible to the public. Id. at 296. Perhaps the strongest support from our circuit for Mendoza’s position can be found in Faragalla v. Access Receivable Ma nagement (In re Faragalla), 422 F.3d 1208 (10th Cir. 2005). In that case, we were task ed with interpreting several of the Federal Rules of Bankruptcy Procedure that establis h a deadline for filing certain bankruptcy appeals. That deadline is meas ured from the “entry of a judgment or order in a docket.” Id. at 1210 (quoting Fed. R. Ba nkr. P. 5003(a)). Interpreting th is language, we held that [t]he signing of the order or judgment by the judge does not constitute an “entry” by the judge. Th e entry occurs when it is noted on the docket and thereby becomes public. A document is entered when the clerk makes the notation on the official public reco rd, the docket, of the activity or submission of the particular document. Faragalla, 422 F.3d at 1210 (quot ation and ellipses omitted). As the foregoing quote dem onstrates, one would normally assume that the docket refers to an “official public r ecord” rather than an internal court document. Id. (emphasis added). The Supreme Court has also operated under this assumption. In Bankers Trust Co. v. Mallis, 435 U.S. 381 (19 78), the Court noted that “the keeping of a civil docket pursuant to Rule 79 fulfills a public recordke eping function over and above the giving of notice to the losing party that a final decision ha s been entered against it.” Id. at 384 n.4. This supposition that dockets are public records has a long pedigree. As the Second Circuit noted in concluding that the public has a qualified First Amendment right-7- of access to docket sheets, our “national her itage” suggests that dockets are open to public inspection: “Since the first years of the Republic, state statutes have mandated that clerks maintain records of judicial proceedings in the form of docket books, which were presumed open either by common law or in accordance with particular legislation.” Hartford Courant Co. v. Pellegrino, 380 F. 3d 83, 94 (2d Cir. 2004); see also id. at 95 (collecting cases from numerous jurisdictions holding that dockets are open to public inspection). The same was true of Englis h common law. One of the early uses of “docket” or “dogget” noted in the Oxford Eng lish Dictionary is an 1809 legal dictionary which explains that judgments are “entered on th e docket of that term ; so that upon any occasion you may soon find out a judgment, by searching these dock ets, if you know the attorney’s name.” IV Oxford English Dictionary at 91 2 (quoting Sir Thomas E. Tomlins, The Law Dictionary (2d ed. 18 09)). “History therefore dem onstrates that docket sheets and their equivalents were, in general, expe cted to remain open for public viewing and copying.” Hartford Courant Co., 380 F.3d at 95; see also Meliah Thomas, Comment, The First Amendment Right of Access to Docket Sheets, 94 Cal. L. Rev. 1537, 1542 (2006) (“Historically, dockets and doc ket sheets have been open for public inspection.”). We have no reason to doubt the continued validity of that expectation. In a variety of contexts, recent federal court cases have noted that dockets are generally public documents. See Nunez v. Pachman, 578 F.3d 228, 230 (3d Cir. 2009) (noting that a New Jersey statute requires “expungement of a cr iminal record from all public documents, including police blotters and court dockets”) ; Mangiafico v. Blum enthal, 471 F.3d 391,-8- 398 (2d Cir. 2006) (district court permissibl y looked to docket sh eets in ruling on motion to dismiss because “docket sheets are public records of which the court could take judicial notice”); United States v. Ochoa-Va squez, 428 F.3d 1015, 1029 n.5 (11th Cir. 2005) (“As a publication, the docket sheet provides the public and press with notice of case developments.”); United States v. Alcantara, 396 F. 3d 189, 200 (2d Cir. 2005) (“Entries on the docket should be made promp tly . . . . We think this type of general public notice suffices to affo rd an adequate opportunity for challenge . . . .”). We acknowledge that a few cases have refe renced a “sealed docket.” See, e.g., In re Sealed Case (Bowles), 624 F.3d 482, 488 (D.C. Cir. 2009) (noting that in a “unique” sealed case, the “ad hoc procedure for notice described in the sealed docket . . . proved inadequate”); United States v. Valenti, 987 F.2d 708, 715 (11th Cir. 1993) (holding that a district court’s “maintenance of a public a nd a sealed docket is inconsistent with affording the various interests of the public and the press meaningful access to criminal proceedings”). The term “sea led docket” is not contradict ory or nonsensical, but the clear weight of authority indicates that a docket is normally a public filing. Further, interpreting the phrase “ent ered on the criminal doc ket” to require entry of judgment in a public fashion comports with the purpose of the rule . In 1966, prior to the adoption of Rule 4(b), Fed. R. Crim. P. 37(a)(2) was amended to provide that a judgment is entered for purposes of starting th e appeal deadline when it is “entered in the criminal docket.” Advisory Committee No te to 1966 Amendments, reprinted in 39 F.R.D. 69, 200 (1966). The 1966 Committe e Notes explain that the amendment was-9- necessary to “fix the precise time at which a judgment is entered.” Id. A publicly available entry ensures this purpose will be sa tisfied. In contrast, defining “entered on the criminal docket” as including entries visibl e only to court staff sows confusion as to the precise date from which an appellate deadline runs. Th is case provides such an example. Mendoza’s appellate counsel indi cated in the docketing statement filed with this court that, “[a]ccording to the docket sheet, Mr. Mendoza still has not yet been sentenced. No explanation for this is appa rent from the docket sheet.” The government cited this confusion as “good cause” fo r its late filing of a motion to dismiss. 1 We also note that interpreting Rule 4(b) to require entry of ju dgment in a publicly accessible fashion fits within the overall scheme of the federal rules. Under Fed. R. Crim. P. 49(c), the clerk is required to provid e notice of court orders to the parties, but “the clerk’s failure to give notice does not affect the time to appeal, or relieve—or authorize the court to relieve—a party’s failure to appeal within the allowed time.” Id. The potential for this rule to work injustice is mitigated if judgment must be entered on a publicly accessible docket because an attentiv e defendant can always determine when his

1 We need not decide whet her good cause excused the government’s late filing of its motion to dismiss. Although Tenth Circuit Rule 27.2 states that a motion to dismiss an appeal “should be filed w ithin 14 days after the notice of appeal is filed, unless good cause is shown,” 10th Cir. R. 27.2(A)(3 )(a), an untimely motion does not result in forfeiture if the government raises the issue in its merits brief. See United States v. Clayton, 416 F.3d 1236, 1239 (10th Cir. 2005); see also Un ited States v. Mitchell, 518 F.3d 740, 750 (10th Cir. 2008) (“Because Ru le 4(b) implicates important judicial interests beyond those of the parties, we hol d that this court may raise its time bar sua sponte.” (italicization omitted)).-10- appeal deadline begins by checking his do cket sheet. Under the government’s interpretation of Rule 4(b), however, court personnel could effectively deny a defendant the right to an appeal by entering judgment in a secretive manner. The parties have not raised before us constitutional arguments under the First Amendment or the Due Process Clause and it is not for us to lo ok beyond the narrow dispute framed by the parties. United States v. Yelloweagle, 643 F.3d 1275, 1284 (10th Cir. 2011). Nevertheless, we note that the rule proposed by the govern ment raises serious constitutional concerns. An “essential principl e of due process is that a deprivation of life, liberty or property be preceded by no tice.” Riggins v. Goodman, 572 F.3d 1101, 1108 (10th Cir. 2009); see also United States v. Ready, 82 F.3d 55 1, 555 (2d Cir. 1996) (“Once a system of appellate courts is put into place . . . a criminal defendant’s ability to appeal may not be unduly burdened.”) (citi ng Griffin v. Illinois, 351 U.S. 12, 18-19 (1956)). These concerns coun sel against adopting the gove rnment’s position. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009 ) (“[A]mbiguous statutory language [should] be construed to avoid seri ous constitutional doubts.”); see also Phelps v. Hamilton, 59 F.3d 1058, 1070 (10th Cir. 1995 ) (noting the “well-established principle” that “statutes will be interpreted to avoi d constitutional difficulties” (quotation omitted)). Based on the forgoing authorities, we c onclude that a judgment is not “entered on the criminal docket” for purposes of Fed. R. App. P. 4(b)(6 ) unless judgment is noted on the docket in a publicly accessible manner. Th is does not mean that a court must provide access to the judgment itself, but the public docket must re flect the date judgment was-11- entered. See In re Application of Hera ld Co., 734 F.2d 93, 102 (2d Cir. 1984) (“The motion itself may be filed under seal, when appropriate, by leave of court, but the publicly maintained dock et entries should reflect the fact th at the motion was filed . . . .”). Because the criminal docket in Mendoza’s case does not reflect the entry of final judgment, we deny the government’s motion to dismiss. 2 Mendoza’s notice of appeal was filed after the court announced its sent ence but before the entry of judgment, and thus his appeal is timely. See Fed. R. App. P. 4(b)(2). 3

2 The government notes that Mendoza rece ived his criminal docket sheet in June 2010 after filing a pro se request. The record is unclear as to wh ether this transmittal indicated that a sealed judgment had been file d. In any event, our court has previously rejected the argument that “the date of entry” of a judgment or or der “could be the date upon which it is received by a prisoner.” Jenkins v. Burtzloff, 69 F.3d 460, 462 (10th Cir. 1995). “The absurdity of such a definiti on could be seen most clearly where a single order or judgment applies to several parties who are incarcerated. The date of entry for a single order could be different for each of the incarcerated parties.” Id. We rejected a notice-based definition of entry because “[w] hen a court clerk is asked what the entry date is of an order or judgment it should not be necessary for the clerk to give a different answer depending on who asks the question.” Id. Accordingly, notice to Mendoza cannot constitute entry on the criminal docket under establis hed Tenth Circuit precedent.

3 Although final judgment was never pr operly entered, we nevertheless have jurisdiction over this appeal. As long as “no question exists as to the finality of the district court’s decision,” defects in the pr oper entry of judgment do not affect our appellate jurisdiction. Burlington N. R.R. Co. v. Huddleston, 94 F.3d 1413, 1416 n.3 (10th Cir. 1996). There is cl early no question that the dist rict court’s imposition of a sentence was final. The Supreme Court has held that if “a separate judgment is not filed before a party appeals, nothing but delay wo uld flow from requiring the court of appeals to dismiss the appeal.” Bankers Trust Co. v. Mallis, 435 U.S. 381, 385 (1978). We have applied this rule in many civil cases. See, e.g., Deboard v. Sunshine Mining & Ref. Co., 208 F.3d 1228, 1237 (10th Cir. 2000); Kunkel v. Cont’l Cas. Co., 866 F.2d 1269, 1272 n.3 (10th Cir. 1989). Although we have not applied this rule in a criminal case as far as we are aware, the operative language from Fed. R. App. P. 4 is identical as to civil and criminal appeals. Compare Fed. R. App. P. 4(a)(2) with Fed. R. App. P. 4(b)(2). We Continued . . .-12- III Turning to the merits, Mendoza argues th at the prosecution breached the plea agreement by failing to recommend a sentence at the low end of his Guidelines range. Because Mendoza’s counsel did not object to the prosecution’s breach of the plea agreement, we review for plain error. Puck ett v. United States, 556 U.S. 129, 133 (2009). “Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fa irness, integrity, or public reputation of judicial proceedings.” United States v. Weiss, 630 F.3d 1263, 1274 (10th Cir. 2010) (citation omitted). The record shows th at as part of Mendoza’s plea agreement the prosecution agreed to recommend a sentence at the low end of th e Guidelines range. Yet at sentencing, the prosecution ignored this promise and inst ead emphasized the severity of Mendoza’s offense. Nevertheless, the court selected a sentence at the botto m of the Guidelines
range. As a general matter, “[w]here the Gove rnment obtains a guilty plea which is predicated in any significant degree on a prom ise or agreement with the U.S. Attorney, such promise or agreement must be fulfilled to maintain the integrity of a plea.” United States v. Villa-Vazquez, 536 F.3d 1189, 1196 (10th Cir. 2008) (quotation omitted). It is plain that the government violated Mendoza’s plea agreement. However, to prevail under

thus see no reason to depart from our standard practice of considering the appeal rather than remanding for proper entry of judgment.-13- plain error review, Mendoza must show that th is breach violated his substantial rights. Weiss, 630 F.3d at 1274. “An error only affe cts substantial rights when it is prejudicial, meaning that there is a reasonable probability th at, but for the error claimed, the result of the proceeding would have been different.” Id. at 1274 (quo tation and citation omitted). Mendoza has not shown a reasonable prob ability that he would have received a lesser sentence absent the government’s br each. Mendoza’s counsel made the court aware of the prosecutor’s obligation to re commend a low-end sentence. And the court was quite clear that it considered a sentence at the bottom of Mendoza’s Guidelines range to be “a bargain, relatively speaking.” We ha ve no reason to expect the court would have varied from the Guidelines a nd gone even lower had the pr osecution fulfilled its end of the plea agreement.
IV
We DENY the government’s motion to dismiss the appeal and AFFIRM Mendoza’s sentence.