                                                                            FILED
                            NOT FOR PUBLICATION                               OCT 5 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10007

               Plaintiff - Appellee,             D.C. No. 2:05-cr-00580-SMM

  v.
                                                 MEMORANDUM *
CHRISTOPHER AUGUSTINE BROWN,

               Defendant - Appellant.



                     Appeal from the United States District Court
                              for the District of Arizona
                   Stephen M. McNamee, District Judge, Presiding

                           Submitted September 27, 2011 **

Before:        HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.

       Christopher Augustine Brown appeals pro se from the district court’s denial

of his motion for an extension of time to file an appeal, and of his motion to correct

his underlying sentence based on a computation error. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      We first address whether we may hear Brown’s appeal. The district court

properly denied Brown’s untimely request for an extension of time to file an appeal

of his sentence because he failed to establish excusable neglect. See Fed. R. App.

P. 4(b); United States v. Mortensen, 860 F.2d 948, 949 (9th Cir. 1988).

Nevertheless, because the government forfeited the argument that Brown’s appeal

is untimely, we may exercise jurisdiction over Brown’s claim. See United States v.

Sadler, 480 F.3d 932, 940 (9th Cir. 2007). Likewise, the plea agreement does not

preclude review of Brown’s claim, as the agreement is silent regarding his right to

challenge an alleged computation error. See United States v. Speelman, 431 F.3d

1226, 1229-31 (9th Cir. 2005).

      Brown is not entitled to relief, however, because the record reflects the

district court did not award credit, nor did it intend to credit him, for the time he

spent in state custody.

      Brown’s opening brief also seeks to raise additional arguments presented for

the first time on appeal, which we decline to consider. See Smith v. Marsh, 194

F.3d 1045, 1052 (9th Cir. 1999).

      AFFIRMED.




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