                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                          May 13, 2015

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                         No. 14-6227
                                                   (D.C. No. 5:14-CR-00089-C-2)
HUMBERTO BELTRAN-FLORES,                                   (W.D. Okla.)

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before HARTZ, GORSUCH, and MORITZ, Circuit Judges.


      Pursuant to a plea agreement with a broad appeal waiver, Humberto

Beltran-Flores pleaded guilty to one count of possession of methamphetamine with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The district court entered

judgment on September 25, 2014, and, despite his appeal waiver, Mr. Beltran-Flores

filed a pro se notice of appeal on December 1. The government has moved to enforce

the appeal waiver under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004)


*
       This panel has determined that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument. This order and judgment
is not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(en banc) (per curiam), or to dismiss the appeal as untimely under

Fed. R. App. P. 4(b)(1)(A)(i). We appointed new counsel to represent

Mr. Beltran-Flores in this matter. In light of the parties’ arguments, we grant the

government’s motion to dismiss the appeal as untimely.

      Under Rule 4(b)(1)(A)(i), a criminal defendant must file a notice of appeal

“within 14 days after the later of: (i) the entry of either the judgment or the order

being appealed.” Rule 4(b) is not jurisdictional, but is one of the “inflexible

claim-processing rules, which, unlike a jurisdictional rule, may be forfeited if not

properly raised by the government.” United States v. Garduño, 506 F.3d 1287, 1291

(10th Cir. 2007) (brackets omitted) (internal quotation marks omitted). As a result,

the inflexible deadline in Rule 4(b)(1)(A) “assure[s] relief to a party properly raising”

it. Garduño, 506 F.3d at 1291. Mr. Beltran-Flores filed his notice of appeal

sixty-seven days after the district court entered the judgment.

      Mr. Beltran-Flores argues that the government waived its objection to the

untimely filing of the notice of appeal by failing to move to dismiss the appeal within

fourteen days, as provided in 10th Cir. R. 27.2(A)(1)(a) & (3)(a). We noted in

Garduño that “when the government recognizes a violation of Rule 4(b)(1)(A), it

should consider filing a motion for dismissal under Federal Rule of Appellate

Procedure 27 and 10th Circuit Rule 27.2(A)(1)(a) . . . .” Garduño, 506 F.3d at 1292

n.7. But we also pointed out that the procedural rules do not require that a motion to

dismiss a criminal appeal as untimely be made earlier than the government’s response


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brief. Id. at 1292. We concluded that a “[f]ailure to invoke Rule 27.2(A)(1)(a) . . .

does not constitute a forfeiture where . . . the appellee seeks dismissal for failure to

timely appeal in its response brief.” Garduño, 506 F.3d at 1291 n.7. Similarly, the

government raised the untimeliness of the notice of appeal in this case in its motion

to enforce the appeal waiver. We conclude that the issue is not forfeited. See id.

      We grant the government’s motion to dismiss the appeal as untimely. The

appeal is dismissed.

                                                 Entered for the Court
                                                 Per Curiam




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