                                                                       F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       August 29, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                       No. 05-6352
          v.                                           (W .D. of Okla.)
 BOBBY FITZGERALD PRIN CE, SR.,                   (D.C. No. CR-04-189-L)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, HA RTZ, and, TYM K O VICH , Circuit Judges. **


      Bobby Fitzgerald Prince, Sr. appeals the district court’s denial of his

motion to file an untimely notice of appeal. Since Prince appears pro se, we

construe his pleadings liberally. Cummings v. Evans, 161 F.3d 610, 613 (10th

Cir. 1998). Because the circumstances here required that Prince file a timely

notice of appeal, we DISM ISS.




      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                   I. Background

      O n June 3, 2005, Prince pleaded guilty to knowingly transporting two

minors in interstate commerce with the intent they engage in prostitution in

violation of 18 U.S.C. § 2423(a) and was sentenced to 150 months imprisonment.

As part of his plea agreement, Prince agreed to waive his right to appeal or

otherw ise collaterally challenge his guilty plea or sentence.

      Despite this agreement and knowing that his time to file a notice of appeal

had lapsed, on September 19, Prince motioned the district court to grant him leave

to file a notice of appeal. The district court denied the motion, finding that Prince

did not meet his burden of showing excusable neglect. Additionally, the court

noted that granting the motion would create a substantial danger of unfair

prejudice to the government in light of Prince’s waiver of his right to appeal.

Prince timely appealed from the denial of this motion.

                                    II. Analysis

      W e review a district court’s order refusing to extend the time for filing a

notice of appeal for abuse of discretion. Bishop v. Corsentino, 371 F.3d 1203,

1206 (10th Cir. 2004).

      A criminal defendant has 10 days from entry of either the judgment or

order being appealed to file a notice of appeal. See Fed. R. App. P. 4(b)(1)(A)(i).

However, upon a showing of excusable neglect or good cause, the district court

may extend the time to file a notice of appeal for 30 days from the original 10-day

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deadline. See id. 4(b)(4). Here, Prince did not file his notice of appeal until

September 19, 2005— 108 days after the original judgment, or stated differently,

68 days after the expiration of the 30-day extension. Clearly, then, Prince’s

motion was untimely.

          There is some dispute whether the requirement for a timely notice of appeal

amounts to a claim-processing rule or a jurisdictional rule. See Eberhart v.

United States, 126 S. Ct. 403 (2006). However, we do not need to resolve that

dispute here, because under either interpretation, Prince was required to timely

file his notice of appeal: (1) if the requirement is jurisdictional, it is clear that we

lack jurisdiction to hear Prince’s original appeal; and (2) if the requirement is

simply for purposes of claim-processing, we still cannot hear the appeal because

the government raised this defense before the district court. See id. at 407.

Therefore, under either interpretation, we find that the district court lacked

authority to grant Prince’s motion to extend his time to file a notice of appeal.

Consequently, the court did not abuse its discretion in denying Prince’s requested

relief.

                                    III. Conclusion

          Accordingly, for the reasons stated above, we DISM ISS this appeal.

                                                 Entered for the Court

                                                 Timothy M . Tymkovich
                                                 Circuit Judge



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