                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   March 23, 2009
                    UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                 TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 07-2271
          v.                                                 (D. N.M.)
 PEDRO CORTEZ-PEREZ,                            (D.C. No. 1:05-CR-02458-JEC)

               Defendant-Appellant.




                            ORDER AND JUDGMENT *


Before HENRY, Chief Judge, TYMKOVICH, Circuit Judge, and LEONARD, **
District Judge.



      Defendant-Appellant Pedro Cortez-Perez appeals the district court’s denial

of his motions to permit the filing of his notice of appeal out of time. Because

the district court did not abuse its discretion in denying Mr. Cortez-Perez an

extension of time to file his notice of appeal, we affirm.




      *
        This order and judgment is not binding precedent except under the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.
      **
        The Honorable Tim Leonard, United States District Judge for the
Western District of Oklahoma, sitting by designation.
                                 I. BACKGROUND

      Pursuant to a plea agreement, Mr. Cortez-Perez pled guilty to one count of

conspiracy involving the distribution of heroin. At sentencing, the district court

denied Mr. Cortez-Perez’s motion for a downward adjustment based on his role in

the offense as well as his request for a deviation from the sentencing guidelines.

The district court’s judgment of conviction reflecting a sentence of 87 months was

entered on February 16, 2007.

      Mr. Cortez-Perez filed his notice of appeal (case number 07-2065) on March

6, 2007, one day past the expiration of the ten-day period for filing criminal

appeals set forth in Federal Rule of Appellate Procedure 4(b)(1)(A)(i). Although

the notice of appeal was filed one day past the initial ten-day filing deadline, it

was filed within the thirty-day permissible extension period authorized by Fed. R.

App. P. 4(b)(4) upon a finding of excusable neglect or good cause. We partially

remanded the matter to the district court on June 6, 2007, “to permit Defendant

Cortez-Perez, upon proper motion, an opportunity to demonstrate that his failure to

comply with the filing requirements of Rule 4(b)(1)(A)(i) was based on excusable

neglect or good cause.”

      On August 8, 2007, Mr. Cortez-Perez filed a two-page motion for extension

of time to file a notice of appeal, offering the following reasons for the delay: (1)

Mr. Cortez-Perez does not speak English; (2) his desire to appeal was not

communicated to his attorney until March 6, 2007; (3) his desire to appeal was not


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communicated earlier than March 6, 2007 “because the secretary was out of the

office” the week before; and (4) his counsel attended court in ten other cases. On

September 5, 2007, the district court denied the motion because the reasons given

by Mr. Cortez-Perez for the late filing of his notice of appeal failed to demonstrate

good cause or excusable neglect as required by Fed. R. App. P. 4(b)(4). As a

result of the denial of an extension, Mr. Cortez-Perez’s appeal in case number 07-

2065 was dismissed as untimely on September 14, 2007.

      On the same date his appeal in case number 07-2065 was dismissed, Mr.

Cortez-Perez filed a motion in the district court seeking reconsideration of the

previous denial of an extension of time to file his notice of appeal. On November

28, 2007, the motion for reconsideration was denied on the grounds that Mr.

Cortez-Perez failed to show that the court had misapprehended the law or the facts

with respect to its first denial of an extension, and also failed to present any newly

discovered evidence to support a finding of excusable neglect or good cause for

the late filing of his notice of appeal.

      This appeal followed.

                                   II. DISCUSSION

      We 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). Under this standard, a trial court’s decision will not be

disturbed unless the appellate court has a definite and firm conviction that the


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lower court made a clear error of judgment or exceeded the bounds of permissible

choice in the circumstances. Brown v. Presbyterian Healthcare Servs., 101 F.3d

1324, 1331 (10th Cir. 1996).

      A criminal defendant has 10 days from entry of the judgment to file a notice

of appeal. See Fed. R. App. P. 4(b)(1)(A)(i). However, upon a finding of good

cause or excusable neglect, the district court may extend the time to file a notice

of appeal for a period not to exceed 30 days from the initial 10-day deadline. Fed.

R. App. P. 4(b)(4). Mr. Cortez-Perez has the burden of establishing either good

cause or excusable neglect. See United States v. Lucas, 597 F.2d 243, 245 (10th

Cir. 1979).

      Good cause “comes into play in situations in which there is no fault –

excusable or otherwise. In such situations, the need for an extension is usually

occasioned by something that is not within the control of the movant.” Bishop,

371 F.3d at 1207 (citation omitted). Mr. Cortez-Perez claims that the absence of

counsel’s secretary from the office and counsel’s court appearances in other

matters were matters beyond his attorney’s control. Mr. Cortez-Perez’s motions

provide little explanatory information concerning the secretary’s absence from the

office or counsel’s appearance in court on other matters. Other than the bare

statement that these events occurred and required an expenditure of time by

counsel, the motions fail to provide a basis for the district court to find that these

events were beyond the attorney’s control. Based upon the cursory information


                                            4
provided by Mr. Cortez-Perez’s motions, we cannot conclude that the district court

made a clear error in judgment in denying Mr. Cortez-Perez’s motion for an

extension and motion for reconsideration. The district court did not abuse its

discretion in finding that Mr. Cortez-Perez’s reasons for filing a late notice of

appeal do not constitute good cause.

       To determine whether excusable neglect exists, the court must examine (1)

the danger of prejudice to the nonmoving party, (2) the length of the delay and its

potential impact on the 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. United States v. Torres, 372 F.3d 1159, 1162 (10th

Cir. 2004). These factors are not to be given equal weight; the third factor, fault in

the delay, is “perhaps the most important single factor in determining whether

neglect is excusable.” Id. at 1163 (citations omitted).

      The district court identified and applied these factors, noting that three of

the four weighed in favor of finding excusable neglect. Specifically, the district

court found that the one-day delay would not prejudice the government, the length

of the delay would not affect the proceedings, and there was no evidence that Mr.

Cortez-Perez acted in bad faith. In examining the remaining factor, described in

Torres as “perhaps the most important single factor” in determining whether

neglect is excusable, the district court concluded that none of the reasons given by

Mr. Cortez-Perez for the delay in filing the notice of appeal established excusable


                                           5
neglect. The district court correctly applied the standards for determining whether

excusable neglect had been established and did not abuse its discretion in denying

Mr. Cortez-Perez’s motions to permit the filing of his notice of appeal out of time.

The belated claim that the district court should have held a hearing on the motions

does not relieve Mr. Cortez-Perez of his burden of proof to demonstrate good

cause or excusable neglect, and is further weakened by his failure to request a

hearing.

      We do not find an abuse of discretion in the district court’s conclusion that

Mr. Cortez-Perez failed to demonstrate that his failure to comply with the filing

requirements of Rule 4(b)(1)(A)(i) was based on good cause or excusable neglect.

                               III. CONCLUSION

      We therefore AFFIRM the judgment of the district court.



                                              Entered for the Court,


                                              Tim Leonard
                                              District Judge




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