     Case: 17-11222      Document: 00514941050         Page: 1    Date Filed: 05/02/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                    No. 17-11222                                FILED
                                  Summary Calendar
                                                                             May 2, 2019
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

HORACE RAY MABREY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-366-1


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Horace Ray Mabrey pleaded guilty without a plea agreement to
possession of a firearm by a convicted felon and was sentenced to 57 months of
imprisonment and two years of supervised release, pursuant to 18 U.S.C.
§§ 922(g)(1), 924(a)(2). It is not disputed that Mabrey’s notice of appeal is
untimely as it was not filed within the time limitations of Federal Rule of
Appellate Procedure 4(b). Judgment was entered on March 28, 2017, and


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 17-11222    Document: 00514941050     Page: 2   Date Filed: 05/02/2019


                                 No. 17-11222

Mabrey’s pro se notice of appeal was not filed until October 7, 2017. See
Houston v. Lack, 487 U.S. 266, 270 (1988) (holding that a pro se prisoner’s
notice of appeal shall be deemed filed at the time it is delivered to prison
officials for mailing); FED. R. APP. P. 4(c)(1)(A)(ii) (codifying prison mailbox
rule). The Government filed an opposed motion to dismiss the appeal on this
basis, and the motion was carried with this case.
      Mabrey, who is represented by the Federal Public Defender (FPD),
argues that we should excuse the late notice of appeal and consider his
substantive sentencing claims on the merits. We decline to do so. Although
an untimely notice of appeal does not deprive us of jurisdiction over a criminal
appeal, the time limits for filing a notice of appeal are “mandatory claims-
processing rules.” United States v. Pesina-Rodriguez, 825 F.3d 787, 788 (5th
Cir. 2016). When, as in this case, the party asserting application of the rule
properly seeks enforcement of the rule, a “court’s duty to dismiss the appeal
[is] mandatory.” Eberhart v. United States, 546 U.S. 12, 18 (2005); see also
Pesina-Rodriguez, 825 F.3d at 788 (holding that an untimely appeal is a
procedural mechanism that, if invoked by the Government, would foreclose an
appeal). The district court’s failure to advise Mabrey at sentencing of his right
to appeal does not alter this conclusion.
      Accordingly, the Government’s opposed motion to dismiss the appeal is
GRANTED and the appeal is DISMISSED. The dismissal of the instant appeal
does not prevent Mabrey from seeking recourse under 28 U.S.C. § 2255 if he
can make the required showing.




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