     Case: 12-41046       Document: 00512397577         Page: 1     Date Filed: 10/04/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          October 4, 2013
                                     No. 12-41046
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SAMANTHA RODRIGUEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:11-CR-1664-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Samantha Rodriguez entered a conditional guilty plea to one count of
making a false statement in acquisition of a firearm. She appeals, arguing that
the district court erred in denying her motion to suppress evidence.                     The
Government argues that the appeal should be dismissed because Rodriguez
failed to file a timely notice of appeal.
       A defendant in a criminal case generally has 14 days from the entry of the
judgment on the criminal docket to file a notice of appeal.                   FED. R. APP.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-41046     Document: 00512397577      Page: 2   Date Filed: 10/04/2013

                                  No. 12-41046

P. 4(b)(1)(A)(i), (b)(6). This time limit is mandatory but not jurisdictional. See
United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007). “[W]hen an
appellee properly objects to an untimely filed appeal . . . the court’s duty to
dismiss the appeal is just as mandatory as if the rule were jurisdictional.”
Burnley v. City of San Antonio, 470 F.3d 189, 192 n.1 (5th Cir. 2006).
      Rodriguez had until July 12, 2012, to timely notice her appeal from the
criminal judgment, which was entered on June 28, 2012. See FED. R. APP.
P. 4(c)(1). The letter that serves as Rodriguez’s pro se notice of appeal bears the
date July 9, 2012, but the record shows that Rodriguez’s mailing to the district
court was postmarked September 10, 2012, and the notice of appeal was received
by the district court on September 12, 2012.
      Because she was an inmate confined in an institution, Rodriguez could
have filed her notice of appeal in a timely manner by depositing it “in the
institution’s internal mail system on or before the last day for filing.” FED.
R. APP. P. 4(c)(1). Under Rule 4(c)(1), “[t]imely filing may be shown by a
declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement,
either of which must set forth the date of deposit and state that first-class
postage has been prepaid.”      Id.   The record, however, does not contain a
declaration or a notarized statement from Rodriguez as contemplated by Rule
4(c)(1). Because Rodriguez failed to comply with the filing requirements for
inmates set forth in Rule 4(c)(1), this court cannot consider her notice of appeal
to have been timely filed.
      The other provisions of Rule 4(b) are of no benefit to Rodriguez. Pursuant
to Rule 4(b)(4)(B), the district court may “grant an additional 30 days in which
to file a notice of appeal upon a showing of ‘excusable neglect’ or ‘good cause.’”
United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000). “The filing of an
untimely notice of appeal within the 30-day period is customarily treated by this
court in a criminal case as a motion for a determination whether excusable
neglect or good cause entitles the defendant to an extension of time to appeal.”

                                        2
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                                 No. 12-41046

Id. Here, however, the 30-day period expired on August 13, 2013, before
Rodriguez’s notice of appeal was filed. As Rodriguez’s notice of appeal was not
filed within the permissible extension period, she cannot seek relief by showing
excusable neglect or good cause. See United States v. Awalt, 728 F.2d 704, 705
(5th Cir. 1984).
      Because the notice of appeal was not timely filed, the appeal is
DISMISSED.




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