     Case: 10-11126     Document: 00511529585         Page: 1     Date Filed: 07/05/2011




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

                                                                            FILED
                                                                            July 5, 2011
                                     No. 10-11126
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GERALD STONE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:04-CR-318-2


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Gerald Stone appeals the district court’s final order of forfeiture, arguing
that the court lacked subject matter jurisdiction over his criminal case, that the
district court and the Government breached the plea agreement, and that the
criminal forfeiture was illegal. The Government has filed a motion for summary
affirmance or to dismiss Stone’s appeal. In the alternative, the Government
seeks an extension of time in which to file a brief on the merits.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 10-11126

      This court must examine the basis of its jurisdiction, sua sponte, if
necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). “Federal courts
have no jurisdiction under Article III § 2 of the Constitution unless a case or
controversy is presented by a party with standing to litigate.” Nevares v. San
Marcos Consol. Indep. Sch. Dist., 111 F.3d 25, 26 (5th Cir. 1997). As a general
matter, a party who is not aggrieved by a judgment does not have standing to
appeal it. See Ward v. Santa Fe Indep. Sch. Dist., 393 F.3d 599, 603 (5th Cir.
2004).
      “A preliminary order of forfeiture is a final judgment as to the rights of a
defendant to forfeited property.       In contrast, a final order of forfeiture
determines the rights of third parties with respect to property a defendant has
forfeited.” United States v. De Los Santos, 260 F.3d 446, 448 (5th Cir. 2001).
A preliminary order of forfeiture becomes final as to the defendant
“[a]t sentencing[,] or at any time before sentencing if the defendant consents.”
FED. R. CRIM. P. 32.2(b)(3) (2007).
      Stone’s interest in the forfeited property was resolved by the preliminary
order of forfeiture, which became final as to Stone at his February 1, 2007,
sentencing. See id.; De Los Santos, 260 F.3d at 448. Consequently, Stone no
longer had any interest in the forfeited property when the district court entered
the final order of forfeiture. See United States v. Petrie, 302 F.3d 1280, 1284
(11th Cir. 2002) (noting that “all post-sentencing activities authorized by Rule
32.2 concern third-party interests”). Because the final order of forfeiture did not
implicate Stone’s rights to the forfeited property, he lacks standing to appeal
that order. See De Los Santos, 260 F.3d at 448. Accordingly, Stone’s appeal of
the final order of forfeiture is dismissed for lack of jurisdiction.
      With the benefit of liberal construction, Stone also challenges the
preliminary order of forfeiture. The preliminary order of forfeiture became final
as to Stone at sentencing, see FED. R. CRIM. P. 32.2(b)(3) (2007), and the
forfeiture was included in the judgment of conviction entered on February 5,

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                                  No. 10-11126

2007. Pursuant to Rule 4(b)(1)(A)(i) of the Federal Rules of Appellate Procedure,
Stone had 10 days from the entry of judgment in which to appeal the forfeiture
order. See FED . R. APP. P. 4(b)(1)(A)(i) (2007); De Los Santos, 260 F.3d at 448.
Although Stone filed a timely notice of appeal, he did not appeal the forfeiture
order. The instant notice of appeal is untimely because it was filed over three
years after the entry of judgment and well beyond the time for extending the
appeal period under Rule 4(b)(4). See De Los Santos, 260 F.3d at 448.
      Although not jurisdictional, the time limit set forth in Rule 4(b)(1)(A)(i) is
mandatory. United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007).
Because the Government has filed a motion to dismiss Stone’s appeal as
untimely, it has not forfeited or waived the issue. Accordingly, the Government’s
motion to dismiss is GRANTED, and Stone’s appeal of the preliminary order of
forfeiture is dismissed as untimely. The Government’s alternative motions for
summary affirmance or for an extension of time to file an appellate brief are
DENIED as moot.
      APPEAL DISMISSED.




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