United States v. Leijano-Cruz

United States Court of Appeals
Fifth Circuit
F I L E D
December 20, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-50280
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ELUTERIO MAURO LEIJANO-CRUZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
m 2:04-CR-308-ALL
______________________________
Before JONES, Chief Judge, SMITH and
STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Eluterio Leijano-Cruz was sentenced for il-
legal reentry but did not file a notice of appeal
or motion to extend the time to file a notice of
appeal within the time set forth in Federal Rule
of Appellate Procedure 4(b). The district
court sua sponte invoked rule 4(b)’s time limit
and denied Leijano-Cruz’s motion for exten-
sion of time to file. Leijano-Cruz appeals that
denial. We affirm.
I.
Leijano-Cruz is a Mexican citizen who re-
entered the United States after being removed.
He was first deported in February 2004; before
his deportation, he had been convicted of
assault. In March 2004 he was found in Texas
and pleaded guilty of illegal reentry under

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8 U.S.C. § 1326. A judgment of sentence was
entered on October 21, 2004.
The 10-day period for filing notice of ap-
peal under rule 4(b)(1) expired on Novem-
ber 4.1 The 30-day period for extending the
time to file notice of appeal under rule 4(b)(4)
ended on December 6 (30 days after the 10
days provided in rule 4(b)(1)(A)).2
On December 7 the Federal Public Defen-
der filed a notice of appeal on Leijano-Cruz’s
behalf, and on December 10 he filed a motion
to extend the time to file a notice of appeal
pursuant to rule 4(b)(4), urging the district
court to find that the late notice of appeal re-
sulted from excusable neglect. The govern-
ment, though served, did not respond to the
motion.
The court denied the motion to extend,
finding that the date the motion was filed was
“beyond whatever statutory power the Court
may possess to extend Defendant’s deadline to
file a notice of appeal.” The court added that
“no showing has been made of good cause or
excusable neglect that would allow this Court
to extend the deadline if it could.” Leijano-
Cruz appeals the denial, arguing that rule 4(b)
is a non-jurisdictional claim-processing rule
that the government forfeited by failing to ob-
ject to his motion for extension.
II.
This court has traditionally held that rule
4(b) is jurisdictional and thus cannot be for-
feited or waived, so we cannot hear an appeal
if a party fails to comply with its timing re-
quirements.3 The decision in Eberhart v. Unit-
ed States, 546 U.S. 12, 126 S. Ct. 403 (2005)
(per curiam), however, casts doubt on our tra-
ditional view.
In Eberhart the Court held that rule 33(a),
which allows a district court to vacate a judg-
ment and grant a motion for a new trial if a
1 Rule 4(b)(1)(A) sets the time within which a
criminal defendant must file a notice of appeal:
In a criminal case, a defendant’s notice of ap-
peal must be filed in the district court within 10
days after the later of:
(i) the entry of either the judgment or the order
being appealed; or
(ii) the filing of the government’s notice of
appeal.
FED. R. APP. P. 4(b)(1)(A).
2 Rule 4(b)(4) states:
Upon a finding of excusable neglect or good
cause, the district court maySSbefore or after
the time has expired, with or without motion
and noticeSSextend the time to file a notice of
appeal for a period not to exceed 30 days from
the expiration of the time otherwise prescribed
by this Rule 4(b).
FED. R. APP. P. 4(b)(4).
3 See, e.g., United States v. Golding, 739 F.2d
183, 184 (5th Cir. 1984) (“We are compelled to
raise sua sponte the issue of timeliness for a timely
notice of appeal is essential to our jurisdiction on
appeal.”); United States v. Awalt, 728 F.2d 704,
705 (1984) (“Courts cannot extend the time period
beyond the forty-day time period prescribed by
Rule 4(b). To have the opportunity to seek relief
by showing excusable neglect, the late notice or
some other filing evidencing an intention to appeal
must be filed within the forty-day period. . . .
Because Awalt’s notice of appeal was not filed in
time and because compliance with Rule 4(b) is
mandatory and jurisdictional, his appeal must be
dismissed.”).

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party complies with its strict time limitation,
does not delimit subject-matter jurisdiction but
is an inflexible claim-processing rule. In that
case, the defendant filed a supplemental mem-
orandum supporting his motion for a new trial
six months after the deadline set out in rule
33(a). Eberhart, 546 U.S. at __, 126 S. Ct. at
404. The government opposed the motion on
the merits, but the district court granted it. Id.
The court of appeals reversed the award of a
new trial, holding that the district court lacked
jurisdiction to grant one, but the Supreme
Court reversed, stating that the government
had forfeited its right to raise the defense of
untimeliness. Id. at 404, 407.
The outcome of Eberhart is less important
for resolving this case than is its discussion of
United States v. Robinson, 361 U.S. 220
(1960), which involved an untimely notice of
appeal under Federal Rule of Criminal Proce-
dure 37, which is the predecessor to rule 4(b).4
See Eberhart, 126 S. Ct. at 406. In Robinson,
the defendant filed a notice of appeal eleven
days after the deadline in rule 37; the govern-
ment objected to the untimeliness, and the
court of appeals held that the district court
could extend the time to file a notice of appeal
(pursuant to Federal Rule of Civil Procedure
45(b)) if the untimeliness was on account of
excusable neglect. Robinson, 361 U.S. at
221-22.
The Supreme Court disagreed and reversed,
citing the rule stated in circuit court cases on
the issue: “[T]he filing of a notice of appeal
within the 10-day period prescribed by Rule
37(a)(2) is mandatory and jurisdictional.” Id.
at 224. In Eberhart, 546 U.S. at __, 126 S.
Ct. at 406, the Court explained that “Robinson
is correct not because the district court lacked
subject-matter jurisdiction, but because dis-
trict courts must observe the clear limits of the
Rules of Criminal Procedure when they are
properly invoked.” The Court further expli-
cated “the central point of the Robinson case”
by stating that
when the Government objected to a filing
untimely under Rule 37, the court’s duty to
dismiss the appeal was mandatory. The net
effect of Robinson, viewed through the
clarifying lens of Kontrick, is to admonish
the Government that failure to object to un-
timely submissions entails forfeiture of the
objection, and to admonish defendants that
timeliness is of the essence, since the Gov-
ernment is unlikely to miss timeliness de-
fects very often.
Id. at 406-07.
From Eberhart’s discussion of Robinson,
one might conclude that rule 4(b) is nonjuris-
dictional, but no court of appeals has yet done
so,5 and we find it unnecessary to take that
4 The Advisory Committee Notes from rule
4(b)’s 1967 adoption make plain that it merely re-
states rule 37: “Subdivision (b). This subdivision
is derived from FRCrP 37(a)(2) [rule 37(a)(2),
Federal Rules of Criminal Procedure] without
change of substance.”
5 Other circuits have recognized that Eberhart
affects rule 4(b) but have refused to decide whether
rule 4(b) is jurisdictional. See, e.g., United States
v. Carelock, 459 F.3d 437, 440 n.6 (3d Cir. 2006)
(“Although the language and commentary of the
rules, along with their prior treatment by the Su-
preme Court and this Court, strongly support the
conclusion that Rules 3 and 4 govern subject-mat-
ter jurisdiction, we need not answer this question at
this time because waiver is not implicated here.”);
United States v. Smith, 438 F.3d 796, 801 (7th
Cir. 2006) (recognizing that Eberhart may change
(continued...)

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step here. This is because, even if Eberhart
applies to notices of appeal in criminal cases,6
the Supreme Court there held only that a dis-
trict court’s decision to permit an untimely
document to be considered could not be re-
versed in the absence of an objection by the
government in the district court. Eberhart
does not hold that a defendant, as appellant
from a decision that forbade his pursuing an
untimely noticed appeal, has a right to have the
untimeliness disregarded.
In other words, the district court does not
err, after Eberhart, if it enforces an inflexible
claim processing rule, and we may not reverse
its decision to do so. Irrespective of whether
the government noted the untimeliness in the
district court, it is the defendant’s burden on
appeal to show that the court erred in enforc-
ing the rule.
On the facts of this case, the outcome is ob-
vious. Leijano-Cruz did not file a timely no-
tice of appeal, and as the district court noted,
he utterly failed to assert any ground for ex-
cusable neglect. The district court could cor-
rectly enforce the time limits, regardless of
whether they are jurisdictional. Irrespective of
which standard of review is employed, the
court neither erred nor reversibly erred in its
denial of the rule 4(b)(4) motion.
AFFIRMED.
5(...continued)
rule 4(b) but declining to decide whether it is
jurisdictional).
6 Notices of appeal in civil cases might be dif-
ferent from those in criminal cases, because notices
in civil cases are governed by a statutorily-based
time limit. Under Eberhart, there is a strong rule
that Federal Rule of Appellate Procedure rule 4(a),
governing civil appeals, is jurisdictional. See
Bowles v. Russell, 432 F.3d 668, 669, 672 n.1 (6th
Cir. 2005) (holding that “the fourteen-day period of
Rule 4(a)(6) . . . is not susceptible to extension
through mistake, courtesy, or grace,” because Con-
gress limited the courts of appeals’ jurisdiction for
civil cases in 28 U.S.C. § 2107, a statute distinct
from rule 4(a)), cert. granted, 2006 U.S. LEXIS
9445 (U.S. Dec. 7, 2006).

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