                                                                               United States Court of Appeals
                                                                                        Fifth Circuit
                                                                                      F I L E D
                                                In the                               December 20, 2006
                      United States Court of Appeals                               Charles R. Fulbruge III
                                    for the Fifth Circuit                                  Clerk
                                          _______________

                                            m 05-50280
                                          _______________




                                  UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                               VERSUS

                               ELUTERIO MAURO LEIJANO-CRUZ,

                                                             Defendant-Appellant.


                                    _________________________

                            Appeal from the United States District Court
                                 for the Western District of Texas
                                       m 2:04-CR-308-ALL
                              ______________________________




Before JONES, Chief Judge, SMITH and                 and denied Leijano-Cruz’s motion for exten-
  STEWART, Circuit Judges.                           sion of time to file. Leijano-Cruz appeals that
                                                     denial. We affirm.
JERRY E. SMITH, Circuit Judge:
                                                                            I.
   Eluterio Leijano-Cruz was sentenced for il-          Leijano-Cruz is a Mexican citizen who re-
legal reentry but did not file a notice of appeal    entered the United States after being removed.
or motion to extend the time to file a notice of     He was first deported in February 2004; before
appeal within the time set forth in Federal Rule     his deportation, he had been convicted of
of Appellate Procedure 4(b). The district            assault. In March 2004 he was found in Texas
court sua sponte invoked rule 4(b)’s time limit      and pleaded guilty of illegal reentry under
8 U.S.C. § 1326. A judgment of sentence was                 motion.
entered on October 21, 2004.
                                                                The court denied the motion to extend,
   The 10-day period for filing notice of ap-               finding that the date the motion was filed was
peal under rule 4(b)(1) expired on Novem-                   “beyond whatever statutory power the Court
ber 4.1 The 30-day period for extending the                 may possess to extend Defendant’s deadline to
time to file notice of appeal under rule 4(b)(4)            file a notice of appeal.” The court added that
ended on December 6 (30 days after the 10                   “no showing has been made of good cause or
days provided in rule 4(b)(1)(A)).2                         excusable neglect that would allow this Court
                                                            to extend the deadline if it could.” Leijano-
   On December 7 the Federal Public Defen-                  Cruz appeals the denial, arguing that rule 4(b)
der filed a notice of appeal on Leijano-Cruz’s              is a non-jurisdictional claim-processing rule
behalf, and on December 10 he filed a motion                that the government forfeited by failing to ob-
to extend the time to file a notice of appeal               ject to his motion for extension.
pursuant to rule 4(b)(4), urging the district
court to find that the late notice of appeal re-                                   II.
sulted from excusable neglect. The govern-                      This court has traditionally held that rule
ment, though served, did not respond to the                 4(b) is jurisdictional and thus cannot be for-
                                                            feited or waived, so we cannot hear an appeal
   1
                                                            if a party fails to comply with its timing re-
    Rule 4(b)(1)(A) sets the time within which a            quirements.3 The decision in Eberhart v. Unit-
criminal defendant must file a notice of appeal:            ed States, 546 U.S. 12, 126 S. Ct. 403 (2005)
                                                            (per curiam), however, casts doubt on our tra-
    In a criminal case, a defendant’s notice of ap-
                                                            ditional view.
   peal must be filed in the district court within 10
   days after the later of:
                                                              In Eberhart the Court held that rule 33(a),
   (i) the entry of either the judgment or the order        which allows a district court to vacate a judg-
   being appealed; or                                       ment and grant a motion for a new trial if a

   (ii) the filing of the government’s notice of
                                                               3
   appeal.                                                       See, e.g., United States v. Golding, 739 F.2d
                                                            183, 184 (5th Cir. 1984) (“We are compelled to
FED. R. APP. P. 4(b)(1)(A).                                 raise sua sponte the issue of timeliness for a timely
                                                            notice of appeal is essential to our jurisdiction on
   2
       Rule 4(b)(4) states:                                 appeal.”); United States v. Awalt, 728 F.2d 704,
                                                            705 (1984) (“Courts cannot extend the time period
     Upon a finding of excusable neglect or good            beyond the forty-day time period prescribed by
   cause, the district court maySSbefore or after           Rule 4(b). To have the opportunity to seek relief
   the time has expired, with or without motion             by showing excusable neglect, the late notice or
   and noticeSSextend the time to file a notice of          some other filing evidencing an intention to appeal
   appeal for a period not to exceed 30 days from           must be filed within the forty-day period. . . .
   the expiration of the time otherwise prescribed          Because Awalt’s notice of appeal was not filed in
   by this Rule 4(b).                                       time and because compliance with Rule 4(b) is
                                                            mandatory and jurisdictional, his appeal must be
FED. R. APP. P. 4(b)(4).                                    dismissed.”).

                                                        2
party complies with its strict time limitation,          within the 10-day period prescribed by Rule
does not delimit subject-matter jurisdiction but         37(a)(2) is mandatory and jurisdictional.” Id.
is an inflexible claim-processing rule. In that          at 224. In Eberhart, 546 U.S. at __, 126 S.
case, the defendant filed a supplemental mem-            Ct. at 406, the Court explained that “Robinson
orandum supporting his motion for a new trial            is correct not because the district court lacked
six months after the deadline set out in rule            subject-matter jurisdiction, but because dis-
33(a). Eberhart, 546 U.S. at __, 126 S. Ct. at           trict courts must observe the clear limits of the
404. The government opposed the motion on                Rules of Criminal Procedure when they are
the merits, but the district court granted it. Id.       properly invoked.” The Court further expli-
The court of appeals reversed the award of a             cated “the central point of the Robinson case”
new trial, holding that the district court lacked        by stating that
jurisdiction to grant one, but the Supreme
Court reversed, stating that the government                 when the Government objected to a filing
had forfeited its right to raise the defense of             untimely under Rule 37, the court’s duty to
untimeliness. Id. at 404, 407.                              dismiss the appeal was mandatory. The net
                                                            effect of Robinson, viewed through the
   The outcome of Eberhart is less important                clarifying lens of Kontrick, is to admonish
for resolving this case than is its discussion of           the Government that failure to object to un-
United States v. Robinson, 361 U.S. 220                     timely submissions entails forfeiture of the
(1960), which involved an untimely notice of                objection, and to admonish defendants that
appeal under Federal Rule of Criminal Proce-                timeliness is of the essence, since the Gov-
dure 37, which is the predecessor to rule 4(b).4            ernment is unlikely to miss timeliness de-
See Eberhart, 126 S. Ct. at 406. In Robinson,               fects very often.
the defendant filed a notice of appeal eleven
days after the deadline in rule 37; the govern-          Id. at 406-07.
ment objected to the untimeliness, and the
court of appeals held that the district court               From Eberhart’s discussion of Robinson,
could extend the time to file a notice of appeal         one might conclude that rule 4(b) is nonjuris-
(pursuant to Federal Rule of Civil Procedure             dictional, but no court of appeals has yet done
45(b)) if the untimeliness was on account of             so,5 and we find it unnecessary to take that
excusable neglect. Robinson, 361 U.S. at
221-22.
                                                            5
                                                               Other circuits have recognized that Eberhart
    The Supreme Court disagreed and reversed,            affects rule 4(b) but have refused to decide whether
citing the rule stated in circuit court cases on         rule 4(b) is jurisdictional. See, e.g., United States
the issue: “[T]he filing of a notice of appeal           v. Carelock, 459 F.3d 437, 440 n.6 (3d Cir. 2006)
                                                         (“Although the language and commentary of the
                                                         rules, along with their prior treatment by the Su-
                                                         preme Court and this Court, strongly support the
   4
      The Advisory Committee Notes from rule             conclusion that Rules 3 and 4 govern subject-mat-
4(b)’s 1967 adoption make plain that it merely re-       ter jurisdiction, we need not answer this question at
states rule 37: “Subdivision (b). This subdivision       this time because waiver is not implicated here.”);
is derived from FRCrP 37(a)(2) [rule 37(a)(2),           United States v. Smith, 438 F.3d 796, 801 (7th
Federal Rules of Criminal Procedure] without             Cir. 2006) (recognizing that Eberhart may change
change of substance.”                                                                            (continued...)

                                                     3
step here. This is because, even if Eberhart                cusable neglect. The district court could cor-
applies to notices of appeal in criminal cases,6            rectly enforce the time limits, regardless of
the Supreme Court there held only that a dis-               whether they are jurisdictional. Irrespective of
trict court’s decision to permit an untimely                which standard of review is employed, the
document to be considered could not be re-                  court neither erred nor reversibly erred in its
versed in the absence of an objection by the                denial of the rule 4(b)(4) motion.
government in the district court. Eberhart
does not hold that a defendant, as appellant                   AFFIRMED.
from a decision that forbade his pursuing an
untimely noticed appeal, has a right to have the
untimeliness disregarded.

    In other words, the district court does not
err, after Eberhart, if it enforces an inflexible
claim processing rule, and we may not reverse
its decision to do so. Irrespective of whether
the government noted the untimeliness in the
district court, it is the defendant’s burden on
appeal to show that the court erred in enforc-
ing the rule.

   On the facts of this case, the outcome is ob-
vious. Leijano-Cruz did not file a timely no-
tice of appeal, and as the district court noted,
he utterly failed to assert any ground for ex-


   5
     (...continued)
rule 4(b) but declining to decide whether it is
jurisdictional).
   6
      Notices of appeal in civil cases might be dif-
ferent from those in criminal cases, because notices
in civil cases are governed by a statutorily-based
time limit. Under Eberhart, there is a strong rule
that Federal Rule of Appellate Procedure rule 4(a),
governing civil appeals, is jurisdictional. See
Bowles v. Russell, 432 F.3d 668, 669, 672 n.1 (6th
Cir. 2005) (holding that “the fourteen-day period of
Rule 4(a)(6) . . . is not susceptible to extension
through mistake, courtesy, or grace,” because Con-
gress limited the courts of appeals’ jurisdiction for
civil cases in 28 U.S.C. § 2107, a statute distinct
from rule 4(a)), cert. granted, 2006 U.S. LEXIS
9445 (U.S. Dec. 7, 2006).

                                                        4
