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This order and judgment is not binding precedent except under the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
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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
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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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