                 REVISED SEPTEMBER 1, 2009
          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                    Fifth Circuit

                                                                 FILED
                                                                August 12, 2009
                               No. 07-10593
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

GONZALO GANDARA, also known as G-G

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:06-CR-86-3


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Gonzalo Gandara appeals his conviction and sentence of ten years of
imprisonment for using a short-barreled shotgun during a crime of violence. We
previously remanded this case to the district court for a determination whether
Gandara could show good cause or excusable neglect for his untimeliness under
FED. R. APP. P. 4(b)(1)(A). Although the district court found that Gandara had
not made the necessary showing, the Government now urges that we ignore any


      *
      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should not be published and is not precedent except under the limited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.
                                   No. 07-10593

possible Rule 4 violation and address the merits of Gandara’s appeal. Such a
course is permissible; although the Rule 4 deadline is mandatory, it is not
jurisdictional because it does not derive from a statute.         United States v.
Martinez, 496 F.3d 387, 388-90 (5th Cir.) (holding that a late notice of appeal is
not a jurisdictional bar and affirming sentence on the merits), cert. denied, 128
S. Ct. 728 (2007). We so proceed.
      Gandara argues that, because his indictment did not specify that he used
a short-barreled shotgun, his trial counsel was ineffective for failing to object to
the district court’s determination that his statutory minimum sentence was ten
years of imprisonment pursuant to § 924(c)(1)(B)(i). To prevail on a claim of
ineffective assistance of counsel, a petitioner must show (1) that his counsel’s
performance was deficient in that it fell below an objective standard of
reasonableness, and (2) that the deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 689-94 (1984). We resolve Gandara’s
claim on direct appeal only because it presents a rare instance when we are able
to “evaluate fairly the merits of the claim.” United States v. Nguyen, 504 F.3d
561, 575 (5th Cir. 2007) (internal quotation marks and citation omitted), cert.
denied, 128 S. Ct. 1324 (2007).
      While this court has not decided the issue, at least one of our sister circuits
has held that the type of firearm used in a § 924(c)(1)(B) offense constitutes an
element of the offense that must be included in the indictment and proven to a
jury when not admitted by the defendant. United States v. Harris, 397 F.3d 404,
410-414 (6th Cir. 2005) (addressing the effects of United States v. Booker, 543
U.S. 220 (2005), on § 924(c)(1)(B) analysis). We need not resolve the issue in
this case, however, because, even assuming that the use of a short-barreled
shotgun was an element of Gandara’s offense, his conviction and sentence are
not invalid; he admitted that he used a short-barreled shotgun in the factual
basis for his guilty plea. See Booker, 543 U.S. at 232, 244. Gandara does not
contend that counsel was ineffective in advising him regarding his guilty plea

                                         2
                                   No. 07-10593

or the plea agreement. Accordingly, Gandara’s counsel did not render ineffective
assistance by failing to object at sentencing regarding the consideration of
Gandara’s use of a shotgun. See Clark v. Collins, 19 F.3d 959, 966 (5th Cir.
1994) (“Failure to raise meritless objections is not ineffective lawyering; it is the
very opposite.”).
      AFFIRMED.




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