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    United States v. Garcia, 10th Cir. (2012)

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    This order summarizes two criminal appeals involving Juan Carlos Garcia-Roman that have been consolidated. Garcia-Roman was convicted of drug distribution and illegal re-entry. For the re-entry conviction and supervised release violation, the district court sentenced him to a total of 54 months. Garcia-Roman filed these appeals pro se nearly 6 months after the judgment, without seeking an extension. The appeals are dismissed as untimely under Rule 4(b)(1)(A) of the Federal Rules of Appellate Procedure, which requires a notice of appeal within 14 days of judgment.

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    United States v. Garcia, 10th Cir. (2012)

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    This order summarizes two criminal appeals involving Juan Carlos Garcia-Roman that have been consolidated. Garcia-Roman was convicted of drug distribution and illegal re-entry. For the re-entry conviction and supervised release violation, the district court sentenced him to a total of 54 months. Garcia-Roman filed these appeals pro se nearly 6 months after the judgment, without seeking an extension. The appeals are dismissed as untimely under Rule 4(b)(1)(A) of the Federal Rules of Appellate Procedure, which requires a notice of appeal within 14 days of judgment.

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    Filed: 2012-04-05 Precedential Status: Non-Precedential Docket: 11-3147

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    This order summarizes two criminal appeals involving Juan Carlos Garcia-Roman that have been consolidated. Garcia-Roman was convicted of drug distribution and illegal re-entry. For the re-entry conviction and supervised release violation, the district court sentenced him to a total of 54 months. Garcia-Roman filed these appeals pro se nearly 6 months after the judgment, without seeking an extension. The appeals are dismissed as untimely under Rule 4(b)(1)(A) of the Federal Rules of Appellate Procedure, which requires a notice of appeal within 14 days of judgment.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    20 views3 pages

    United States v. Garcia, 10th Cir. (2012)

    Uploaded by

    Scribd Government Docs
    This order summarizes two criminal appeals involving Juan Carlos Garcia-Roman that have been consolidated. Garcia-Roman was convicted of drug distribution and illegal re-entry. For the re-entry conviction and supervised release violation, the district court sentenced him to a total of 54 months. Garcia-Roman filed these appeals pro se nearly 6 months after the judgment, without seeking an extension. The appeals are dismissed as untimely under Rule 4(b)(1)(A) of the Federal Rules of Appellate Procedure, which requires a notice of appeal within 14 days of judgment.

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    of 3

    FILED

    United States Court of Appeals


    Tenth Circuit

    April 5, 2012
    UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
    TENTH CIRCUIT

    Clerk of Court

    UNITED STATES OF AMERICA,


    PlaintiffAppellee,
    v.
    JUAN CARLOS GARCIA-ROMAN,

    Nos. 11-3147 & 11-3149


    (D.C. Nos. 5:07-CR-40069-MLB-1 &
    6:10-CR-10065-MLB-1 )
    (D. Kansas)

    DefendantAppellant.

    ORDER AND JUDGMENT*

    Before OBRIEN, McKAY, and TYMKOVICH, Circuit Judges.

    After examining the briefs and the appellate record, this panel has determined
    unanimously to honor the parties request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f). This case is therefore ordered submitted without
    oral argument.
    These direct criminal appeals involve a supervised release revocation and a
    conviction for re-entry after deportation. In separate appeals, which we consolidate for
    purposes of disposition, Defendant Juan Carlos Garcia-Roman appeals his sentencing. In
    an earlier proceeding, Defendant was convicted of distribution of twenty kilograms of

    This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
    persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

    marijuana, sentenced to time served, and placed on two years of supervised release. He
    was then deported to Mexico. Defendant unlawfully re-entered the country and was
    arrested in Kansas for driving without a drivers license. Defendant pled guilty to reentry after deportation and admitted to the violation of his supervised release. At
    sentencing, he asked the district court for a downward variance in light of the fact that he
    returned to the United States only to help his wife, who had been in a serious automobile
    accident. The district court calculated the relevant guidelines sentence for the illegal reentry as forty-six to fifty-seven months and sentenced Defendant to forty-six months of
    incarceration. The district court also imposed a consecutive eight-month sentence for the
    supervised release violation for a total sentence of fifty-four months.
    Nearly six months after entry of judgment, Defendant, acting pro se, filed these
    appeals. The district court thereafter appointed him counsel. Defendant did not seek a
    time extension in the district court. Defendant claims his prior counsel, who is currently
    on disability inactive status, failed to file a notice of appeal. In the interests of judicial
    economy, Defendant asks the court to consider these appeals despite their untimeliness.
    Under the Federal Rules of Appellate Procedure, a defendant in a criminal trial
    must file a notice of appeal within fourteen days after entry of the judgment or order
    being appealed. Fed. R. App. P. 4(b)(1)(A). If the defendant does not file an appeal, the
    criminal conviction becomes final upon the expiration of the time in which to take a
    direct criminal appeal. United States v. Prows, 448 F.3d 1223, 1227-28 (10th Cir.
    2006). The district court entered judgment in Defendants case on November 17, 2010.
    -2-

    The judgment became final on December 2, 2010. Defendant filed his notices of appeal
    on May 23, 2011, far outside the fourteen-day time period. While the government could
    have filed a motion for dismissal under Rule 27 to avoid briefing on the merits, it does not
    forfeit such position if it seeks dismissal for untimeliness in its response brief, which it
    did here. See United States v. Garduno, 506 F.3d 1287, 1292 n.7 (10th Cir. 2007).
    Despite its nonjurisdictional nature, Rule 4(b)(1)(A) is an inflexible claim processing
    rule, which assure[s] relief to a party properly raising its time limits. Id. at 1291
    (quotation marks omitted). Thus, the United States properly raised Defendants failure to
    file timely notices of appeal.2
    Accordingly, we DISMISS these appeals.

    ENTERED FOR THE COURT

    Monroe G. McKay
    Circuit Judge

    In a case like this one, which will inevitably come back to us as a 2255 petition
    for habeas relief, dismissal under Rule 4(b)(1) seems to undermine the rationale for the
    timeliness ruleto save judicial resources. Where the rule is not jurisdictional, it would
    seem simpler to exercise our discretion in the typical case, which is often unmeritorious,
    to end the process and dispose of the case on the merits. However, we cannot. Because
    the government seeks dismissal for untimeliness, we must dismiss. See Eberhart v.
    United States, 546 U.S. 12, 17-19 (2005); Garduno, 506 F.3d at 1291.
    -3-

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