USA v. Jermaine Carl Curtis

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10260
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERMAINE CARL CURTIS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 1:17-cr-00026-AW-GRJ-1
____________________

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2 Opinion of the Court 23-10260
Before G RANT, BRASHER , and A BUDU , Circuit Judges.
PER CURIAM:
On November 21, 2022, Jermaine Carl Curtis, a pro se federal
prisoner, moved for compassionate release pursuant to the First
Step Act or a reduction of his sentence under 18 U.S.C.
§ 3582(c)(1)(B). The district court denied the motion the next day,
on November 22, 2022. On January 17, 2021, 56 days after the dis-
trict court denied his motion, Curtis delivered to prison officials for
mailing a notice of appeal designating the district court’s Novem-
ber 22 order.
On appeal, the government argues that the case must be dis-
missed because Curtis’s notice of appeal is untimely filed pursuant
to Federal Rule of Appellate Procedure 4(b). Curtis contends we
should employ equitable tolling and deem his notice of appeal as
timely filed due to extraordinary circumstances.
A motion under 18 U.S.C. § 3582(c)(2) is criminal in nature.
United States v. Fair, 326 F.3d 1317, 1318 (11th Cir. 2003). In a crim-
inal case, a defendant’s notice of appeal must be filed in the district
court within 14 days after the entry of the judgment or order being
appealed. Fed. R. App. P. 4(b)(1)(A)(i). Rule 4(b)(4) authorizes the
district court to grant a 30-day extension of the 14-day deadline in
a criminal case based on a finding of good cause or excusable ne-
glect. Fed. R. App. P. 4(b)(4). A pro se prisoner’s notice of appeal is
deemed filed on the date he delivers it to prison officials for mail-
ing. Fed. R. Civ. P. 4(c)(1); Daniels v. United States, 809 F.3d 588,

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23-10260 Opinion of the Court 3
589 (11th Cir. 2015). Absent evidence to the contrary, we assume
an inmate delivered his filing to prison officials on the date he
signed the filing. Daniels, 809 F.3d at 589.
The deadline in Rule 4(b) for a defendant to file a notice of
appeal in a criminal case is not jurisdictional but is instead a claims-
processing rule. United States v. Lopez, 562 F.3d 1309, 1313 (11th
Cir. 2009). As a result, the government can waive its objection to
an untimely notice of appeal in a criminal case. Id. at 1312-13. Nev-
ertheless, if the government raises the issue of timeliness in its re-
sponsive brief, then we “must apply the time limits of Rule 4(b).”
Id. at 1313-14 (emphasis added). Here, the government has raised
the issue of timeliness in its first merits brief, meaning we must
strictly apply Rule 4(b)’s filing deadline requirement. Id. Because
we must apply the time limits of Rule 4(b), we cannot entertain
Curtis’s argument that he is entitled to equitable tolling of the Rule
4(b) deadline. See Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 714
(2019) (holding that the 14-day appeal deadline for seeking an inter-
locutory appeal from an order respecting class certification under
Fed. R. Civ. P. 23(f) was “mandatory” and not subject to an “equi-
table approach” in the form of equitable tolling); see also Manrique
v. United States, 137 S. Ct. 1266, 1271 (2017) (holding that the filing
of “a timely notice of appeal . . . is at least a mandatory claim-pro-
cessing rule”).
Curtis’s notice of appeal, deemed filed on January 17, 2023,
was untimely to appeal from the district court’s order denying his
motion, which was entered on November 22, 2022, 56 days earlier.

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4 Opinion of the Court 23-10260
Fed. R. App. P. 4(b)(1)(A). This was well beyond the 14-day period
outlined in Rule 4(b)(1)(A)(i). Furthermore, Curtis was not eligible
for relief under Rule 4(b)(4) because his filing was also beyond the
additional 30 days during which an extension was permissible. Fed.
R. App. P. 4(b)(4). Finally, because the time limit in Rule 4(b) is
mandatory, it is not subject to equitable tolling or waiver based on
an exceptional circumstance, so we will not consider Curtis’s argu-
ment in that respect. Accordingly, we DISMISS this appeal as un-
timely.

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