                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 26, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 09-5172
       v.                                             (N.D. Oklahoma)
 JOSE LUIS MACIAS,                            (D.C. No. 4:05-CR-00075-JHP-1)

              Defendant - Appellant.


                            ORDER OF DISMISSAL


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


      On September 14, 2009, Jose Luis Macias, a federal prisoner proceeding

pro se, filed a motion in the United States District Court for the Northern District

of Oklahoma, requesting the court to vacate its prior order requiring restitution in

connection with his 2006 conviction and sentence. The district court denied the

motion on September 17, 2009. Mr. Macias’s motion for reconsideration, filed on

October 13, 2009, was denied on November 25, 2009. He filed his notice of

appeal on December 14, 2009.

      We dismiss the appeal as untimely. Under Fed. R. App. P. 4(b)(1)(A)(i), a

defendant in a criminal case has 14 days from entry of an order to file a notice of

appeal. Mr. Macias’s notice of appeal was filed more than 14 days after the entry

of the order denying his motion for reconsideration. Even if the motion for
reconsideration tolled the 14-day period for appealing the order denying his

original motion, see Fed. R. App. P. 4(b)(3), the notice of appeal would still be

untimely as an appeal from that order. (The notice of appeal would also be

untimely under the 10-day limit set by the version of Fed. R. App. P. 4(b) in

effect before December 1, 2009.) We note that Mr. Macias’s notice of appeal

contained no certificate of service or any indication of use of a prison legal-mail

system, so the prisoner-mailbox rule can afford him no relief. See Fed. R. App.

P. 4(c).

       Although the government can forfeit an objection to timeliness, it has

raised the issue in this case and we must enforce Rule 4(b). See United States v.

Garduño, 506 F.3d 1287, 1292 (10th Cir. 2007).

       We DISMISS the appeal as untimely. Because there is no apparent reason

why the government’s brief was sealed, it will be unsealed unless the government

submits a motion (which may be under seal) seeking sealing (or partial sealing)

within 10 days of the filing of this Order. Appellant’s motion to proceed in forma

pauperis is denied.



                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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