                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                           FOR THE NINTH CIRCUIT
                                                                           AUG 12 2016
UNITED STATES OF AMERICA,                        No. 15-10213           MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


              Plaintiff - Appellee,              D.C. No. 2:14-cr-01627-PHX-
                                                 DGC
 v.

GENARO FEDERICO RUBIO-RIOS,                      MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   David G. Campbell, District Judge, Presiding

                           Submitted August 10, 2016**
                             San Francisco, California

Before: GRABER and McKEOWN, Circuit Judges, and PETERSON,*** District
Judge.




        *
             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).
        ***
             The Honorable Rosanna Malouf Peterson, United States District Judge
for the Eastern District of Washington, sitting by designation.
      Genaro Federico Rubio-Rios appeals the denial of his motion for an

extension of time to file a notice of appeal. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      1. Defendant argues that the district court abused its discretion when

denying Defendant’s motion because of the plea agreement’s appellate waiver, as

opposed to either of the applicable standards under Federal Rule of Appellate

Procedure 4(b)(4). We review for abuse of discretion. Pincay v. Andrews, 389 F.3d

853, 858 (9th Cir. 2004) (en banc). “In assessing whether a district court abused its

discretion, we first ‘determine de novo whether the trial court identified the correct

legal rule to apply to the relief requested.’” United States v. Torres, 794 F.3d 1053,

1059 (9th Cir. 2015) (quoting United States v. Hinkson, 585 F.3d 1247, 1262 (9th

Cir. 2009) (en banc)), cert. denied, 136 S. Ct. 2005 (2016). Under Rule 4(b)(4),

      [u]pon a finding of excusable neglect or good cause, the district court
      may–before or after the time has expired, with or without motion and
      notice–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). As the district court applied the incorrect legal standard

when denying Defendant’s motion, the district court abused its discretion.




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      2. When a district court errs, “a defendant must still prove that the error or

defect was prejudicial.” Torres, 794 F.3d at 1061. The district court’s error was

harmless, as Defendant cannot satisfy either standard under Rule 4(b)(4).

      “An analysis of ‘excusable neglect’ generally requires a court to analyze the

four factors set out by the Supreme Court.” See United States v. Navarro, 800 F.3d

1104, 1109 (9th Cir. 2015) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs.

Ltd., 507 U.S. 380, 395 (1993)). These factors include danger of prejudice, length

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

and whether the movant acted in good faith. Pioneer, 507 U.S. at 395.

Alternatively, “‘[g]ood cause’ is a non-rigorous standard that has been construed

broadly across procedural and statutory contexts.” Ahanchian v. Xenon Pictures,

Inc., 624 F.3d 1253, 1259 (9th Cir. 2010).

      Defendant fails to satisfy either standard. In his motion, Defendant noted

that “personal family problems had overshadowed his thoughts and prevented him

from thinking clearly but that upon clear reflection, he now knows that he wishes

to pursue an appeal.” According to Defendant, he changed his mind after thinking

about his case. Such a change of heart is insufficient to demonstrate either

excusable neglect or good cause for Defendant’s delay.

      AFFIRMED.


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