UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PAULINO PUENTES FRAIRE,

Defendant - Appellee. No. 12-6096 (D.C. No. 5:08- CR-00188-L-1) (W.D. Okla.)

ORDER AND JUDGMENT *

Before HARTZ, EBEL

, and MURPHY , Circuit Judges.

Defendant-Appellant Paulino Fraire appe als the district court’s decision denying

him relief from his 2008 conviction for ma king a false statement in his passport

application. We affirm. 1

* After examining the briefs and appellate record, this panel has determined unanimously to grant the parties = request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10 th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order a nd judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its pe rsuasive value consistent with Fed. R. App.
P. 32.1 and 10th Cir. R. 32.1.

1 The district court did not ab use its discretion in granting Fr aire’s motion, made pursuant to Fed. R. App. P. 4(a)(5), to extend the time to file his notic e of appeal. See Tarabishi v. McAlester Reg’l Hosp., 951 F.2d 1558, 1563 n.3 (10th Cir. 1991) (recognizing district
court has broad discretion in ruling on motion to extend time to file notice of appeal). FILED United States Court of Appeals
Tenth Circuit



### February 27, 2013

Elisabeth A. Shumaker
Clerk of Court2 Fraire, in August 2008, pl ed guilty to knowingly maki ng a false statement in his

passport application. The dist rict court sentenced Fraire to one year probation, a $100

special assessment, and a $1,000 fine. Fraire has now fully discharged his sentence.

After Fraire’s conviction became final, th e Supreme Court, in Padilla v. Kentucky,

130 S. Ct. 1473 (2010) (to be reported at 55 9 U.S. 356), held that defense counsel must

inform a defendant if, by pleadi ng guilty, he risks deportation. See id. at 1486. In light

of Padilla, Fraire petitioned fo r a writ of audita querela va cating his conviction, alleging

that his attorney failed to a dvise him that, by pleading guilty to making a false statement

in his passport application, Fraire would be deported. 2 The district court, however,

correctly denied Fraire relief because Padilla does not apply retroactively to individuals

whose convictions, like Fraire’s, became final before the Supreme Court decided Padilla.

See Chaidez v. United States, --- S.Ct. ---, 201 3 WL 610201, at *3, *10 (U.S. Feb. 20.

2013) (No. 11-820); United States v. Chang H ong, 671 F.3d 1147, 1 148 (10th Cir. 2011).

Fraire’s notice of appeal was, therefore, timely. While that notice of appeal indicated that Fraire was appealing the district court d ecision denying him collateral relief from his 2008 conviction, it did not indicate that he wa s also appealing the district court’s later decision denying Fraire’s appli cation to file a motion for re consideration out of time. We, therefore, do not address Fraire’s challenge to the denial of that application. See Fed. R. App. P. 3(c)(1)(B) (requiring notice of appeal to identify the decisions appealed).
Even if we did consider the district court’s de nial of Fraire’s application to file a motion for reconsideration out of time, howeve r, we would affirm that decision.

2 We assume without deciding, for purposes of th is appeal, that Fraire can obtain the relief he seeks through a writ of audita querela. See United States v. Torres, 282 F.3d 1241, 1245 n.6 (10th Cir. 2002).3 We, therefore, affirm the district court’s decision denying Fraire relief.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge