### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-41046 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. SAMANTHA RODRIGUEZ, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:11-CR-1664-1

Before REAVLEY, JONES, and PRADO, Circuit Judges. PER CURIAM: * Samantha Rodriguez entered a condi t i o nal guilty plea to one count of making a false s tatement in acquisition of a firearm. She appeals, arguing that the d istrict court erred in denying her motion to suppress evidenc e . The Government argues t hat the appeal should be di s m i s s ed because Rodriguez failed to file a timely notice of appeal. A d efendant in a criminal case generally has 14 days from the entry of the judgment on the criminal d ocket to fi le a notice of appeal. F E D
. R. AP P
. U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D October 4, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-41046 Document: 00512397577 Page: 1 Date Filed: 10/04/2013No. 12-41046

P. 4(b)(1)(A)(i), (b)(6). This time limit is mandatory b ut not jurisdictional. See United States v. Martinez , 496 F.3d 387, 388-89 (5th Cir. 2007). “ [ W] h e n an appellee properly objects to an u ntimely filed app e a l

. . . the court’s duty to dismiss the appeal is just as mandatory as if the rule were jurisdiction a l

. ” Burnley v. City of San Antonio , 470 F.3d 189, 192 n.1 (5th Cir. 2006). Rod r i g u e z h a d until July 12, 2012, t o t imely notice her a ppeal from the criminal judgment, whic h was entered on June 2 8, 2012. See F E D
. R. AP P
. P. 4(c)(1). The letter that serves as Rodriguez’s pro se notice of appeal b ears the date July 9, 2012, b ut the record shows that Rodriguez’s mailing to the district court was p ostmarked September 10, 2012, and the notice of appeal was received by the district court on September 12, 2012. Because she was an inmate confined in a n institution , Rodriguez could have filed her notice of appeal in a timely m anner by depositing it “in the institution’s internal mail system on or before t h e last day for filing.” F E D
. R. AP P
. P. 4(c)(1). Under Rule 4 (c)(1), “[t]imely filing may be shown by a declaration in c ompliance with 28 U.S.C. § 1 7 4 6 o r by a notarized statement, either of which must set for t h t h e date o f deposit and state t hat first-class postage has been prepaid.” Id. The record, however, does n ot co n t a i n a d e c l aration or a notarized statement from Rodriguez as contemplated by Rule 4(c)(1). Because Rodriguez failed to c o mply with the f iling requiremen t s for inmates set forth in Rule 4 (c)(1), this court c annot consider her n otice o f appeal to have been timely filed. The other p rovisions of Rule 4(b) are of no benefit t o Rodriguez. Pursuant to Rule 4(b)(4)(B), the d istrict court may “grant an a dditional 30 days in which to file a notice of appeal upon a showing of ‘excusable n eglect’ or ‘good cause.’” Uni t e d S t a t e s v . Alvarez , 210 F.3d 309, 310 (5th Cir. 2 000). “ The filing of an untimely notice of appeal w ithin the 30-day p eriod is customarily treated by this court in a criminal case as a m o t i o n f o r a d e termination whether excusable neglect or good cause entitles the defendant to an extension of time to appeal.”
2 Case: 12-41046 Document: 00512397577 Page: 2 Date Filed: 10/04/2013No. 12-41046

Id. Here, h o w e v e r , the 30-day period expired on August 13, 2013, before Rodriguez’s notice of a ppeal was filed. As Rodriguez’s notice of appeal was not filed w ithin the permissible extension period, s he cannot seek relief by showing excusable neglect or good cause. See United States v. Awalt , 728 F.2d 704, 705 (5th Cir. 1984). Because the notice o f appeal was not timely filed, the appeal is DISMISSED.

3 Case: 12-41046 Document: 00512397577 Page: 3 Date Filed: 10/04/2013