FILED
United States Court of Appeals
Tenth Circuit
May 26, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 09-5172
v. (N.D. Oklahoma)
JOSE LUIS MACIAS, (D.C. No. 4:05-CR-00075-JHP-1)
Defendant - Appellant.
ORDER OF DISMISSAL
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
On September 14, 2009, Jose Luis Macias, a federal prisoner proceeding
pro se, filed a motion in the United States District Court for the Northern District
of Oklahoma, requesting the court to vacate its prior order requiring restitution in
connection with his 2006 conviction and sentence. The district court denied the
motion on September 17, 2009. Mr. Macias’s motion for reconsideration, filed on
October 13, 2009, was denied on November 25, 2009. He filed his notice of
appeal on December 14, 2009.
We dismiss the appeal as untimely. Under Fed. R. App. P. 4(b)(1)(A)(i), a
defendant in a criminal case has 14 days from entry of an order to file a notice of
appeal. Mr. Macias’s notice of appeal was filed more than 14 days after the entry
of the order denying his motion for reconsideration. Even if the motion for
reconsideration tolled the 14-day period for appealing the order denying his
original motion, see Fed. R. App. P. 4(b)(3), the notice of appeal would still be
untimely as an appeal from that order. (The notice of appeal would also be
untimely under the 10-day limit set by the version of Fed. R. App. P. 4(b) in
effect before December 1, 2009.) We note that Mr. Macias’s notice of appeal
contained no certificate of service or any indication of use of a prison legal-mail
system, so the prisoner-mailbox rule can afford him no relief. See Fed. R. App.
P. 4(c).
Although the government can forfeit an objection to timeliness, it has
raised the issue in this case and we must enforce Rule 4(b). See United States v.
Garduño, 506 F.3d 1287, 1292 (10th Cir. 2007).
We DISMISS the appeal as untimely. Because there is no apparent reason
why the government’s brief was sealed, it will be unsealed unless the government
submits a motion (which may be under seal) seeking sealing (or partial sealing)
within 10 days of the filing of this Order. Appellant’s motion to proceed in forma
pauperis is denied.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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