                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 27 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50233

               Plaintiff - Appellee,             D.C. No. 3:09-cr-01684-DMS

  v.
                                                 MEMORANDUM*
ARMANDO GONZALEZ-HEREDIA,
a.k.a. Gallo,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                           Submitted February 18, 2014**

Before:        ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.

       Armando Gonzalez-Heredia appeals from the district court’s judgment and

challenges the 97-month sentence imposed following his guilty-plea conviction for

conspiracy to kidnap, in violation of 18 U.S.C. § 1201(a)(1) and (c);


          *
             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).
and conspiracy to distribute marijuana and cocaine, in violation of 21 U.S.C.

§§ 841(a)(1) and 846. We have jurisdiction under 28 U.S.C. § 1291, and we

dismiss.

      On May 21, 2012, Gonzalez-Heredia filed a pro se notice of appeal from the

judgment entered by the district court on March 5, 2012. Because the notice of

appeal was not timely filed, see Fed. R. App. P. 4(b), the government now urges

this court to dismiss the appeal. Under these circumstances, we must dismiss. See

United States v. Sadler, 480 F.3d 932, 942 (9th Cir. 2007) (where the government

properly raises untimeliness argument, dismissal is mandatory). Contrary to

Gonzalez-Heredia’s contention, the Appellate Commissioner order dated

September 7, 2012, did not contain a determination as to timeliness, but rather

simply discharged the order to show cause.

      DISMISSED.




                                          2                                     12-50233
