                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              OCT 19 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    17-50244

              Plaintiff-Appellee,                D.C. No.
                                                 3:16-cr-02557-BEN-1
 v.

DONNELL THOMAS,                                  MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                      Argued and Submitted October 5, 2017
                               Portland, Oregon

Before: O’SCANNLAIN, PAEZ, and BEA, Circuit Judges.

      Donnell Thomas appeals the district court’s order extending his pretrial

commitment. Because Thomas did not file the notice of appeal within fourteen

days of the district court’s order as required by Federal Rule of Appellate

Procedure 4(b), we dismiss it as untimely.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Following a competency evaluation and hearing, the district court found

Thomas incompetent to stand trial. Pursuant to 18 U.S.C. § 4241(d)(1), the court

committed Thomas to a mental health facility for up to 120 days to determine

whether there was a substantial probability he could attain competency in the

foreseeable future. Over Thomas’s objection, the court subsequently extended his

commitment under section 4241(d)(2)(A) by up to 120 additional days, stating in

its order that “there is a substantial probability that with an additional 120 days of

commitment the Defendant will attain the capacity to permit the proceedings to go

forward.”1 Forty-five days after the court entered the extension order, Thomas

filed his notice of appeal.

      On appeal, Thomas challenges the extension order on statutory and

constitutional grounds, arguing, inter alia, that prior to extending his commitment

the district court was required to hold a hearing to determine whether there was a

substantial probability that he would attain competency within an additional

reasonable time. The extended commitment period was set to expire on November

11, 2017, but while this appeal was pending, Thomas’s primary clinician

determined that he had attained competency, thus triggering discharge proceedings



      1
       The district court later acknowledged that it may not have noticed
Thomas’s objection before signing the extension order.
                                           2
and a competency hearing before the district court. See §§ 4241(e), 4247(d). The

government moved to dismiss this appeal, arguing that the primary clinician’s

determination rendered it moot.

      We do not reach the merits or decide whether this appeal is moot, because

we dismiss it as untimely under Rule 4(b). Rule 4(b) is an “inflexible claim

processing rule.” United States v. Sadler, 480 F.3d 932, 940 (9th Cir. 2007).

Thus, if a defendant in a criminal case fails to file a notice of appeal within

fourteen days of the entry of the order being appealed, dismissal is required unless

the government forfeits the defense. Id. at 941-42; see Fed. R. App. P. 4(b)(1)(A).

The defense of untimeliness is not forfeited when, as here, the government raises it

in an appellate brief. Sadler, 480 F.3d at 941.

      The district court entered the extension order on the docket on May 19,

2017. Under Rule 4(b), Thomas had until June 2, 2017 to file his notice of appeal.

Instead, he filed his notice of appeal on July 3, 2017, a month past the deadline.

      Thomas argues that he filed his notice of appeal from an order entered at a

hearing held before the district court on June 26, 2017. Thomas asserts that the

actual order he appealed can be inferred fairly from the notice of appeal, which

describes the order under appeal as the “Court’s order to extend time under 18

U.S.C. § 4241 entered in this proceeding on the 26th day of June[,] 2017.”


                                           3
      We reject this argument because the district court did not enter the

commitment extension order, or any other order, on June 26, 2017. The record

reflects that the district court did not intend to hold a hearing on that date, having

previously vacated and rescheduled it to November 13, 2017, as part of the

commitment extension order. Nonetheless, for reasons that are unclear, the hearing

remained on the calendar and counsel appeared. At the hearing, the district court

declined to reconsider the extension order over the “objection” orally renewed by

Thomas’s counsel.2 The district judge did not state that he was entering an order at

the hearing, nor does the minute entry on the docket sheet state that an order was

entered. Thus, the minute entry did not constitute an order for notice of appeal

purposes. See Ingram v. AcandS, Inc., 977 F.2d 1332, 1338-39 (9th Cir. 1992).

      Finally, Thomas requests in the alternative that we remand this case to the

district court to determine whether excusable neglect warrants a thirty-day

extension of the appeal period, which would render this appeal timely by one day.

See Rule 4(b)(4). We decline to do so here.

      DISMISSED.




      2
        Thomas’s counsel purported to raise an oral objection at the hearing, but
counsel was instead “taking an exception” to the court’s previous order. See
United States v. Mancinas-Flores, 588 F.3d 677, 686 (9th Cir. 2009).
                                            4
