United States v. Chavez, 10th Cir. (2001)
United States v. Chavez, 10th Cir. (2001)
AUG 17 2001
PATRICK FISHER
Clerk
No. 00-2274
(D.C. No. CR-98-550-JC)
(D. N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
understanding of this provision. The defendant himself does not argue on appeal
that his waiver was unknowing or involuntary.
As a preliminary matter, in order for us to exercise appellate jurisdiction
over the district court's October 5, 2000 Order denying the defendants Rule
4(b)(4) motion, we must have a timely notice of appeal. Compliance with filing
requirements is mandatory and jurisdictional. See Budinich v. Becton Dickinson
& Co., 486 U.S. 196, 203 (1988). Although the defendant failed to file a formal
notice of appeal within ten days after issuance of the October 5, 2000 Order, he
did file a docketing statement in this court that contained a copy of the Rule
4(b)(4) motion. This court will construe the docketing statement as the
functional equivalent of a timely appeal from the October 5, 2000 Order. See
Smith v. Barry, 502 U.S. 244, 248-49 (1992); Torres v. Oakland Scavenger Co.,
487 U.S. 312, 316-17 (1988). We therefore have jurisdiction over the order
denying an extension of time to file a late appeal.
A defendant in a criminal case is required to file a notice of appeal in the
district court within ten days after entry of judgement. See Fed. R. App. P.
4(b)(1)(A)(i). Upon a finding of "excusable neglect or good cause," however, a
district court may extend the time to file a notice of appeal up to thirty days after
expiration of the original deadline. See Fed. R. App. P. 4(b)(4). The Supreme
Court has directed that in determining what constitutes excusable neglect, a court
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appeal because he was on vacation when the judgment was received, and he was
not informed by his staff of receipt of the judgment. Rec., supp. vol. I, doc. 194
at 1-2. And, he concedes that the defendant specifically waived his right to
appeal in the plea agreement. Id. at 2. In opposition, the government cited the
defendant's waiver of his right to appeal, and argued that, under the Pioneer
standards, to allow Defendant Chavez to appeal after he knowingly and
voluntarily waived his right to do so would unfairly prejudice and burden the
government and the courts. Rec., supp. vol. I, doc. 196 at 2-3. The district court
agreed, and denied the Rule 4(b)(4) motion.
In applying Pioneer's four-factor analysis to these facts, we conclude that
the district court did not abuse its discretion when it denied the defendants Rule
4(b)(4) motion. Because the district court was acting within its discretion when
it found no excusable neglect, the time for filing a notice of appeal as to the
district court judgment entered July 10, 2000 was not extended. Therefore, this
court lacks jurisdiction to consider the merits of the direct criminal appeal.
Accordingly, the direct criminal appeal is DISMISSED. The motion by the
defendants counsel to withdraw is GRANTED. The mandate will issue
forthwith.
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