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

                                                                    FILED
                                                                   August 8, 2008
                                 No. 06-31108
                               Summary Calendar                Charles R. Fulbruge III
                                                                       Clerk

UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

v.

KENDELL THORNTON

                                             Defendant-Appellant


                 Appeal from the United States District Court
                    for the Eastern District of Louisiana
                           USDC No. 2:03-CR-30-1


Before SMITH, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Kendell Thornton, federal prisoner # 28289-034, appeals the district
court’s denial of his motion for leave to file an out of time appeal of his
convictions for being a felon in possession of a firearm, possession with intent to
distribute over 50 grams of cocaine base, and possession with intent to distribute
less than 500 grams of cocaine hydrochloride.
      This court has held that, since FED. R. APP. P. 4(b)(1)(A)’s 10-day time limit
to file a notice of appeal is not statutorily imposed, it is “not jurisdictional 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should not be published and is not precedent except under the limited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.
                                  No. 06-31108

[can] be waived.” United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir.), cert.
denied, 128 S. Ct. 728 (2007). The amended judgment of conviction was entered
on February 25, 2004. Thornton did not file this motion for leave to file an out
of time appeal until March 29, 2006, over two years later.            Because the
Government filed a response, arguing that Thornton’s motion was untimely and
did not comply with the requirements of Rule 4(b)(4) regarding an extension of
time for filing a notice of appeal, the Government did not waive the issue. See
Id. at 388-89. Therefore, the district court did not err in denying Thornton’s
motion. See Id.
      Thornton argues that the district court should have granted his motion
based on the unique circumstances of his case, that his attorney misled Thornton
into believing that he had filed a notice of appeal. At Thornton’s rearraignment,
the district court advised him that pursuant to his plea agreement, he waived
the right to appeal, but reserved the right to appeal a sentence in excess of the
statutory maximum sentence and an upward departure; Thornton stated that
he understood.    Thornton has not shown that the district court made an
affirmative representation or specific assurances that misled him and caused his
notice of appeal to be filed late. See Osterneck v. Ernest & Winney, 489 U.S. 169,
179 (1989). Thornton’s reliance on United States v. West, 240 F.3d 456, 459 (5th
Cir. 2001), is misplaced. Although West involved the similar issue whether a
movant was entitled to an out of time appeal due to her counsel’s failure to
perfect an appeal, it was a 28 U.S.C. § 2255 proceeding, not a criminal
proceeding, such as this case, in which a court allowed the filing of an out of time
appeal based on the “unique circumstances” exception. See West, 240 F.3d at
459-62. Therefore, Thornton has not shown that his motion should have been
granted based on the unique circumstances of his case. See Osterneck, 489 U.S.
at 179.
      Thornton argues that the district court erred in sua sponte finding that,
if the motion were construed as a 28 U.S.C. § 2255 motion, it would be time-

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barred. He argues that the district court should have given him notice and an
opportunity to show that his § 2255 motion should not be time-barred because
he was entitled to equitable tolling due to his attorney’s actions. Because the
district court did not recharacterize Thornton’s motion as a § 2255 motion, we
need not consider whether such a § 2255 motion would have been time-barred
or whether Thornton would have been entitled to equitable tolling.
      AFFIRMED.




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