                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 17 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-2274
                                                   (D.C. No. CR-98-550-JC)
    MANUEL CHAVEZ, also known as                          (D. N.M.)
    Manny Chavez,

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, PORFILIO, and ANDERSON , Circuit Judges.


         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Defendant Manuel Chavez pleaded guilty to one count of attempted

aggravated sexual abuse on an Indian Reservation in violation of 18 U.S.C.



*
      This order and judgment is not binding precedent, except under the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 and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
§§§ 1153, 2241(a) and 2246(2)(A), and one count of solicitation to murder a

federal witness in violation of 18 U.S.C. § 373. He was sentenced to a total term

of 262 months followed by 5 years of supervised release. Final judgment was

entered on July 10, 2000.

      A notice of appeal was filed by the defendant on July 25, 2000, which was

five days past the ten-day deadline. See Fed. R. App. P. 4(b)(1)(A)(i). We

issued a show cause order requiring the parties to brief the issue of whether this

court has appellate jurisdiction to consider the merits of the direct criminal

appeal where the notice of appeal was filed past the deadline. As a result, the

defendant moved in the district court for an extension of time. See Fed. R. App.

P. 4(b)(4). On October 5, 2000, the district court entered an order denying the

motion. We then issued an order reserving judgment on the jurisdictional issue.

      Counsel for the defendant has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), concluding, after a conscientious examination

of the entire record, that there are no meritorious issues for appeal, and has

requested leave to withdraw. In his pro se responses to counsel’s brief, the

defendant raises the following issues: 1) denial of a reduction for acceptance of

responsibility; 2) denial of voucher request for additional investigator time and

expert witnesses; 3) withholding of favorable evidence by the government

concerning the criminal record of the defendant’s cellmate; 4) withholding of


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crucial evidence by his counsel concerning his innocence; 5) improper

classification in criminal history category II; 6) entrapment by the government;

and 7) several claims based on ineffective assistance of counsel. The defendant

does not challenge the district court’s denial of his Rule 4(b)(4) motion for

extension of time.

      In the plea agreement, the defendant agreed to waive the right to appeal a

sentence within the applicable sentencing guideline range “except to the extent, if

any, that the Court may depart upwards from the applicable sentencing guideline

range.” Rec. vol. 1, doc. 172 at 7. Our review of the record reveals that the

defendant’s sentence was at the low end of the applicable sentencing guideline

range, and that the district court did not depart upwards from this range. “A

defendant's knowing and voluntary waiver of the statutory right to appeal his

sentence is generally enforceable." United States v. Atterberry, 144 F.3d 1299,

1300 (10th Cir. 1998); see United States v. Rubio, 231 F.3d 709, 712 (10th Cir.

2000); United States v. Black, 201 F.3d 1296, 1300 (10th Cir. 2000). Our review

of the plea agreement and the transcript of the plea hearing reveals that the

defendant's waiver was made knowingly and voluntarily. During the plea

hearing, the defendant and the trial judge discussed in great detail the meaning

and effect of the appellate waiver provision in the plea agreement. At the end of

their discussions, the defendant clearly indicated his full and complete


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understanding of this provision. The defendant himself does not argue on appeal

that his waiver was unknowing or involuntary.

      As a preliminary matter, in order for us to exercise appellate jurisdiction

over the district court's October 5, 2000 Order denying the defendant’s Rule

4(b)(4) motion, we must have a timely notice of appeal. Compliance with filing

requirements is mandatory and jurisdictional. See Budinich v. Becton Dickinson

& Co., 486 U.S. 196, 203 (1988). Although the defendant failed to file a formal

notice of appeal within ten days after issuance of the October 5, 2000 Order, he

did file a docketing statement in this court that contained a copy of the Rule

4(b)(4) motion. This court will construe the docketing statement as the

functional equivalent of a timely appeal from the October 5, 2000 Order. See

Smith v. Barry, 502 U.S. 244, 248-49 (1992); Torres v. Oakland Scavenger Co.,

487 U.S. 312, 316-17 (1988). We therefore have jurisdiction over the order

denying an extension of time to file a late appeal.

      A defendant in a criminal case is required to file a notice of appeal in the

district court within ten days after entry of judgement. See Fed. R. App. P.

4(b)(1)(A)(i). Upon a finding of "excusable neglect or good cause," however, a

district court may extend the time to file a notice of appeal up to thirty days after

expiration of the original deadline. See Fed. R. App. P. 4(b)(4). The Supreme

Court has directed that in determining what constitutes excusable neglect, a court


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must "tak[e] account of all relevant circumstances surrounding the party's

omission." Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507

U.S. 380, 395 (1993). The Court has pointed to four factors that are relevant in

determining whether to find excusable neglect: 1) the danger of unfair prejudice

to the nonmoving party; 2) the length of the delay and its potential impact on

judicial proceedings; 3) the reason for the delay, including whether it was within

the reasonable control of the movant; and 4) whether the movant acted in good

faith. Id.; see City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1046

(10th Cir. 1994). A defendant has the burden of establishing sufficient reason

for the failure to comply with the filing requirements. See United States v.

Lucas, 597 F.2d 243, 245 (10th Cir.1979). In this case, the defendant failed to

do so.

         We review the district court's determination of the presence or absence of

excusable neglect based on an abuse of discretion. See City of Chanute, 31 F.3d

at 1046. "The real question here is not whether we would have found . . .

excusable neglect but rather whether we should second-guess the trial judge's

decision . . . ." Varhol v. National R.R. Passenger Corp., 909 F.2d 1557, 1564

(7th Cir. 1990) (per curiam) (en banc).

         Based on the record before the court, we find little explanation for the late

filing of the appeal. Defendant’s counsel stated he was responsible for the late


                                           -5-
appeal because he was on vacation when the judgment was received, and he was

not informed by his staff of receipt of the judgment. Rec., supp. vol. I, doc. 194

at 1-2. And, he concedes that the defendant “specifically waived his right to

appeal” in the plea agreement. Id. at 2. In opposition, the government cited the

defendant's waiver of his right to appeal, and argued that, under the Pioneer

standards, to allow Defendant Chavez to appeal after he knowingly and

voluntarily waived his right to do so would unfairly prejudice and burden the

government and the courts. Rec., supp. vol. I, doc. 196 at 2-3. The district court

agreed, and denied the Rule 4(b)(4) motion.

      In applying Pioneer's four-factor analysis to these facts, we conclude that

the district court did not abuse its discretion when it denied the defendant’s Rule

4(b)(4) motion. Because the district court was acting within its discretion when

it found no excusable neglect, the time for filing a notice of appeal as to the

district court judgment entered July 10, 2000 was not extended. Therefore, this

court lacks jurisdiction to consider the merits of the direct criminal appeal.

      Accordingly, the direct criminal appeal is DISMISSED. The motion by the

defendant’s counsel to withdraw is GRANTED. The mandate will issue

forthwith.




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Entered for the Court

Deanell Reece Tacha
Chief Judge




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