United States Court of Appeals

Fifth Circuit

FILED

August 9, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-41065

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UNITED STATES OF AMERICA

Plaintiff–Appellee

v.

JOSE LUIS MOLINA MARTINEZ

Defendant–Appellant

Appeal from the United States District Court

for the Southern District of Texas

No. 1:02-CR-99

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:

Jose Luis Molina Martinez appeals the sentence imposed following

revocation of a reimposed term of supervised release. Martinez contends that

the district court lacked authority to reimpose supervised release after

revocation of an earlier supervised release term and, therefore, that the district

court had no authority to sentence him to 24 months in prison. We affirm.

I

We first consider the Government’s motion to dismiss the appeal for want

of jurisdiction because Martinez failed to file a notice of appeal after the first

revocation, which occurred in 2003. Because Martinez did not appeal the first
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1 See, e.g., United States v. Golding, 739 F.2d 183, 184 (5th Cir. 1984).

2 Ketchum v. Gulf Oil Corp., 798 F.2d 159, 162 (5th Cir. 1986).

3 See Eberhart v. United States, 546 U.S. 12, ___, 126 S. Ct. 403, 406-07 (2005) (per

curiam) (holding that rules setting forth time limits for a defendant’s motion for a new trial

grounded on a reason other than newly discovered evidence are not jurisdictional but, instead,

are non-jurisdictional claim-processing rules); Kontrick v. Ryan, 540 U.S. 443, 455-56 (2004)

(distinguishing between rules that are jurisdictional andrules that are merely inflexible claimprocessing rules); see also United States v. Leijano-Cruz, 473 F.3d 571, 573-74 (5th Cir. 2006)

(recognizing that Eberhart and Kontrick suggest that Rule 4(b) is not jurisdictional, but

declining to resolve the issue).

4 127 S. Ct. 2360 (2007).

5

Id. at 2364, 2366.

2

revocation or the resulting sentence, the Government contends that we lack

jurisdiction to revisitthe issue in this otherwise timely filed appeal ofthe district

court’s March 8, 2006 judgment revoking the reimposed term of supervised

release.1

The Government correctly cites precedent reflecting our traditional view

that the time limitation in FED. R. APP. P. 4(b)(1)(A), which governs the filing of

notices of appeal in criminal cases, is mandatory and jurisdictional. We would

ordinarily be constrained to follow this dispositive precedent.2 However, a series

of recent Supreme Court cases had cast doubt on our traditional view,3 and any

remaining doubt has been eradicated by the Supreme Court’s recent opinion in

Bowles v. Russell.

4 Although not directly on point, the analysis in Bowles

establishes that the time limit specified in Rule 4(b)(1)(A) is mandatory, but not

jurisdictional, because it does not derive from a statute.

In Bowles, the Court determined that Rule 4(a)’s deadlines for filing a

federal notice of appeal in civil cases are mandatory and jurisdictional because,

although they are embodied in the Federal Rules of Appellate Procedure, they

are also statutorily imposed.5In reaching this conclusion, the Court drew a
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6

Id. at 2364-66.

7

Id. at 2364 (quoting Kontrick, 540 U.S. at 452) (first alteration in original and

quotations omitted).

8

Id. at 2365.

9

Id. (citing 28 U.S.C. § 2101(c)).

10 Id. (“We have treated the rule-based time limit for criminal cases differently, stating

that it may be waived . . . .”).

11 See United States v. Sadler, 480 F.3d 932. 941-42 (9th Cir. 2007) (concluding that the

time limitation in Rule 4(b)(1)(A) is not jurisdictional based on the rationale in Eberhart v.

United States, 546 U.S. 12 (2005)); see also Ketchum v. Gulf Oil Corp., 798 F.2d 159, 162 (5th

Cir. 1986) (“The holding of a panel of this court must comport with prior panel decisions, until

changed by this court acting en banc, or unless the Supreme Court either clearly holds or

teaches to the contrary.”).

3

distinction between statutory time requirements and court-fashioned time

requirements, finding that only the former could be properly characterized as

“jurisdictional.”6 The Court reasoned that, under Article III, Section 1 of the

Constitution, “[o]nly Congress may determine a lower federal court’s subjectmatter jurisdiction,” and thus “it [is] improper for courts to use the term

‘jurisdictional’ to describe [judicially imposed] time prescriptions in rules of

court.”7 To highlight this distinction, the Court compared its own rules for filing

certiorari petitions in civil and criminal cases.8In both types of cases, the

Supreme Court’s rules set a 90-day time limit for filing a petition, but that time

limit is only statutorily imposed for civil cases.9 As a result, the Court expressly

stated that the rule concerning criminal cases was not jurisdictional and could

be waived.10 Similarly, Rule 4(b)(1)(A)’s time limit is not dictated by statute, and

as Bowles teaches, it is not jurisdictional.11

We therefore hold that there is no jurisdictional impediment to reaching

the merits of this case. We need not consider, however, whether Martinez’s

failure to appeal the first revocation and sentence otherwise precludes or limits
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12 See United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005); see also United States

v. Seals, 207 Fed. Appx. 489, 490 (5th Cir. 2006) (addressing a similar argument and rejecting

the defendant’s argument that the issue on appeal was subject to de novo review), cert. denied,

127 S. Ct. 1894 (2007).

13 18 U.S.C. § 3583(e)(3) (1988).

14 See, e.g., United States v. Holmes, 954 F.2d 270, 272 (5th Cir. 1992), abrogated by

Johnson v. U.S., 529 U.S. 694 (2000); see also Seals, 207 Fed. App’x. at 490 (5th Cir. 2006)

(cataloging other Fifth Circuit cases holding similarly).

4

his right to relief on the merits because we conclude that Martinez’s appeal fails

on the merits.

II

On appeal, Martinez challenges his current sentence on the sole basis that

the district court lacked authority to reimpose supervised release when the

initialterm of supervised release was revoked and he was imprisoned. Martinez

does not otherwise challenge the district court’s decision to revoke the reimposed

term or the actual sentenced imposed. Martinez did not preserve the

constitutional violation alleged on appeal; therefore, we review for plain error.12

A district court’s authority to revoke supervised release is governed by 18

U.S.C. § 3583. When Martinez committed his offense in 1989, and when he

pleaded guilty and was sentenced in 1993, § 3583(e)(3) stated that a court may

“revoke a term of supervised release, and require the person to serve in prison

all or part of the term of supervised release without credit for time previously

served on postrelease supervision . . . .”13 At the time Martinez committed his

offense, this section had not been construed by any court to preclude

reimposition of supervised release. However, by the time Martinez pleaded

guilty and his original sentence was imposed, this court had held that a

defendant could not be required to serve another term of supervised release

(following imprisonment) after the original release term had been revoked.14

Other courts of appeals agreed with our position on this issue at that time, but
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15 See, e.g., United States v. O’Neil, 11 F.3d 292, 301 (1st Cir. 1993); United States v.

Schrader, 973 F.2d 623, 624-25 (8th Cir. 1992).

16 529 U.S. 694 (2000).

17 Id. at 703-13. 

18 207 F. App’x at 490-91.

19 Id. at 491. (quoting Bouie v. City of Columbia, 378 U.S. 347, 354 (1964)) (internal

quotation marks omitted and emphasis added).

5

two circuits held that § 3583(e)(3) empowered district courts to reimpose a

further term of supervised release after revocation.15

The Supreme Court settled the circuit split in Johnson v. United States,

16

which was issued in 2000, well before Martinez’s initial supervised release term

was revoked. In Johnson, the Supreme Court sided with the minority approach

and held that § 3583(e)(3) permitted district courts to impose a term of

supervised release after revoking an initial term of supervised release.17

Martinez argues that applying Johnson retroactively to his 1993 conviction

violates the Due Process Clause because he had no notice or fair warning that

he could be subjected to reimposition of supervised release following revocation.

The Government argues that the retroactive application of Johnson does not

violate the Due Process Clause because the Supreme Court’s judicial

interpretation of the statute was neither unexpected nor indefensible.

In a recent unpublished decision, United States v. Seals, this court held

that Johnson was properly applied retroactively to the defendant’s original

conviction, which occurred in 1992.18 The court stated that “[i]f a judicial

construction of a criminal statute is unexpected and indefensible by reference to

the law which had been expressed prior to the conduct in issue, it must not be

given retroactive effect.”19 Because a circuit-split existed prior to Johnson and

at the time of the defendant’s original conviction and sentencing, the court
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20 Id. 

21 See United States v. Perrin, 478 F.3d 672, 678 (5th Cir. 2007) (noting that persuasive

reasoning in an unpublished decision, although not binding, may be adopted as published

authority).

6

concluded that Johnson’s construction of § 3583(e)(3) was reasonably foreseeable

and provided the defendant with a fair warning.20 Thus, it was not

unconstitutional to apply Johnson retroactively. 

Although Seals is unpublished, and thus not binding, Seals is

authoritative and persuasive.21 Therefore, applying Johnson retroactively to

Martinez’s 1993 conviction does not violate the Due Process Clause, and the

district court did not plainly err in reimposing supervised release after the first

revocation. Accordingly, Martinez’s sentence is affirmed.

AFFIRMED; MOTION DISMISSED AS MOOT