                                                                            F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           March 27, 2007
                                FOR THE TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                            Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,
                                                            No. 06-2203
 v.                                                   (D.C. No. CR-05-475-BB)
                                                              (D.N.M.)
 MERLE J. CERNO,

        Defendant - Appellant.



                                ORDER AND JUDGMENT *


Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges.


       Defendant-Appellant Merle J. Cerno pleaded guilty to a charge of aggravated

sexual abuse in Indian Country, in violation of 18 U.S.C. § 2241(a) and 18 U.S.C. § 1153.

The district court sentenced him to 78 months’ imprisonment. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we dismiss the appeal.




       * After examining the briefs and the appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34(G). This case is therefore ordered
submitted without oral argument. This order and judgment is not binding precedent
except under the doctrines of law of the case, res judicata and collateral estoppel. It may
be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10 th
Cir. R. 32.1.
                                      I. Background

       On August 10, 2003, Mr. Cerno was arrested by officers from the Acoma Police

Department after they responded to a domestic disturbance call from a home located on

the Acoma Pueblo in Cibola County, New Mexico. When the officers arrived they found

the 19-year-old victim and a female witness standing outside the home. The witness told

the officers that Mr. Cerno had beaten and attempted to make sexual contact with the

victim. A subsequent medical examination revealed evidence of sexual penetration and

injuries consistent with a beating.

       Mr. Cerno entered a plea agreement on December 19, 2005. The United States

Probation Office prepared a Presentence Report that found certain offense-level

adjustments to be appropriate, including a four-level upward adjustment for use of force

against the victim. Mr. Cerno objected to this four-level adjustment contending that he

did not use the degree of force necessary to support the increase. Additionally, Mr. Cerno

claimed that, to the extent he used force, he did not do so in furtherance of the crime.

Noting that Mr. Cerno had hit, kicked and held the victim down during the commission of

the crime, the district court concluded that Mr. Cerno had used sufficient force to support

the enhancement. The district court sentenced Mr. Cerno to 78 months’ imprisonment.

       Mr. Cerno filed a notice of appeal from the June 1, 2006 judgment on July 12,

2006, 27 days after the initial 10-day filing deadline expired. See Fed.R.App.P.

4(b)(1)(A)(I); Fed.R.App.P. 26(a)(2). Contemporaneously with the filing of his notice of

appeal, Mr. Cerno filed a motion for extension of time in which to file notice of appeal.

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On July 21, 2006, the district court granted the motion in a summary order that contained

no reasoning or explanation.

                                        II. Discussion

         We acquire jurisdiction only on the filing of a timely notice of appeal. See United

States v. Mitchell, 464 F.3d 1149, 1150 (10 th Cir.2006). Fed.R.App.P. 4(b)(1)(A) requires

a criminal defendant to file a notice of appeal “within 10 days after. . .: the entry of either

the judgment or the order being appealed.” However, “[u]pon a finding of excusable

neglect or good cause, the district court may . . . extend 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). We review the district court’s grant of an

extension for abuse of discretion. See United States v. Vogl, 374 F.3d 976, 981 (10 th Cir.

2004).

         In determining whether there is excusable neglect, the district court must consider

all relevant circumstances regarding the party’s failure to timely file an appeal. See

Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 395 (1993). The district

court should consider, “[1] the danger of prejudice to the nonmoving party, [2] the length

of the delay and its potential impact on judicial proceedings, [3] the reason for the delay,

including whether it was within the reasonable control of the movant, and [4] whether the

movant acted in good faith.” United States v. Torres, 372 F.3d 1159, 1162 (10 th Cir.2004)

(internal quotations omitted; internal brackets removed; quoting Pioneer, 507 U.S. at

395). These factors “are not to be given equal weight”; fault (i.e., the third factor) is a

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very important factor and, arguably, the most important factor in the analysis of whether

neglect should be deemed excusable. Mitchell, 464 F.3d at 1151 (citing Torres, 372 F.3d

at 1163). The defendant bears the burden of establishing that the late filing was the result

of excusable neglect. Id. at 1150.

       Mr. Cerno appears to offer two reasons to justify his failure to timely file a notice

of appeal. First, Mr. Cerno argues that his youth and inexperience with felony-level

crimes led to his failure to timely file. Additionally, Mr. Cerno claims that he did not

make a final decision to appeal until July 10, 2006, although he discussed his appeal

options with his counsel earlier. Without comment, the district court granted the motion.

Because Mr. Cerno’s excuses are insufficient as a matter of law, we find that the district

court abused its discretion in extending the time for filing the notice of appeal.

       At sentencing, the district court informed Mr. Cerno of his appeal rights,

specifically mentioning the 10-day filing deadline. In his motion for extension of time,

Mr. Cerno implies that he and his counsel discussed his appeal options in a timely

manner. Absent from his motion is any argument that his counsel was unwilling or

unable to timely file a notice of appeal. We think, in light of the district court’s

statement, Mr. Cerno’s failure to ask his counsel to file a notice of appeal within 10 days

of the judgment is significant.

       Mr. Cerno suggests that he did not seek a timely appeal due to his youth and

inexperience, perhaps implying that he did not fully appreciate the consequences of his

failure to timely file. However, Mr. Cerno is hardly of tender years in the eyes of the

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federal criminal law. See 18 U.S.C. § 5031 (defining a “juvenile” as “a person who has

not attained his eighteenth birthday”). He was 21 years old in July 2006, when he filed

his notice of appeal. Furthermore, a defendant’s inadvertence, ignorance of the rules, or

mistakes construing the rules ordinarily do not constitute excusable neglect. See Mitchell,

464 F.3d at 1151; Torres, 372 F.3d at 1164. Despite Mr. Cerno’s claimed youth, the fact

remains that he was aware from the district court’s statement that he must file his appeal

in 10 days, and he offers no reason why he was prohibited or hindered from timely filing

a notice of appeal.

       We acknowledge that the government would not likely be prejudiced by Mr.

Cerno’s late filing. However, Mr. Cerno’s failure to provide a legally sufficient excuse

for his untimely filing is the determinative factor in this case. The district court abused its

discretion in deciding that Mr. Cerno had proven excusable neglect. Therefore, because

Mr. Cerno failed to file a timely notice of appeal, we lack jurisdiction to hear the merits

of his appeal.

       This appeal is DISMISSED.



                                           Entered for the Court

                                           Jerome A. Holmes
                                           Circuit Judge




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