   Case: 09-50957       Document: 00511222276          Page: 1    Date Filed: 09/01/2010




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

                                                 FILED
                                                                         September 1, 2010
                                     No. 09-50957
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

JOSE ARIAS-MACEDO,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                         for the Western District of Texas
                                 No.5:09-CR-183-1




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Jose Arias-Macedo appeals his sentence. The government argues that the
appeal should be dismissed as untimely.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-50957     Document: 00511222276 Page: 2         Date Filed: 09/01/2010
                                  No. 09-50957

      The notice of appeal was due within 10 days after the entry of the judg-
ment of conviction. F ED. R. A PP. P. 4(b)(1)(A)(i) (2008). In a criminal case, a dis-
trict court may extend the time for filing a notice of appeal for an additional 30
days on a finding of good cause or excusable neglect. F ED. R. A PP. P. 4(b)(4). In
criminal cases, a notice of appeal filed within this additional 30-day period is
customarily treated as a motion under F ED. R. A PP. P. 4(b)(4). United States v.
Golding, 739 F.2d 183, 184 (5th Cir. 1984). In Arias-Macedo’s case, however, the
additional period ended in August 2009, well before Arias-Macedo filed his notice
of appeal in October 2009. Therefore, the notice of appeal is untimely.
      In a criminal case, the untimely filing of a notice of appeal is not jurisdic-
tional and can be waived. See United States v. Martinez, 496 F.3d 387, 388-89
(5th Cir. 2007). Because, however, the government has challenged the timeli-
ness of the notice of appeal, the appeal is DISMISSED. See United States v.
Gray, 332 F. App’x 192, 193 (5th Cir. 2009).




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