RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0185p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 10-4615
v.
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Defendant-Appellant. -
JOSE ANGEL GAYTAN-GARZA,
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Filed: July 12, 2011
Before: MERRITT and ROGERS, Circuit Judges; FORESTER, District Judge.*
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ORDER
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PER CURIAM. This matter is before the court upon consideration of Jose Angel
Gaytan-Garza’s response to this court’s order directing him to show cause why his
appeal should not be dismissed on the basis of a late notice of appeal. The district court
entered Gaytan-Garza’s judgment of conviction on June 14, 2006. Gaytan-Garza filed
his notice of appeal on December 6, 2010, over four years late. Dismissal is proper in
this case under Federal Rules of Appellate Procedure 4(b) and 26(a).
In his response to the show-cause order, Gaytan-Garza implicitly recognizes this
court’s established position that the time period set forth in Rule 4(b) is “jurisdictional.”
See United States v. Dotz, 455 F.3d 644, 647 (6th Cir. 2006). However, he argues that
“the failure to file the Notice of Appeal is no longer a jurisdictional defect precluding
this court from retaining jurisdiction,” in light of United States v. Martinez, 496 F.3d
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The Honorable Karl S. Forester, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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No. 10-4615 United States v. Gaytan-Garza Page 2
387, 388-89 (5th Cir. 2007). Although Martinez is not binding on this court, its
conclusion that Rule 4(b) is not jurisdictional is based on clear Supreme Court precedent
that undermines our prior understanding of the rule. Three Supreme Court decisions
have explained that a jurisdictional time period is established by statute and that a time
period established only by a rule is merely a non-jurisdictional claim-processing rule.
Bowles v. Russell, 551 U.S. 205, 210-13 (2007), held that the time period set forth in
Federal Rule of Appellate Procedure 4(a)(6) is jurisdictional based on 28 U.S.C.
§ 2107(c). Eberhart v. United States, 546 U.S. 12, 15-16 (2005), held that the time
period provided for filing a Federal Rule of Criminal Procedure 33 motion for a new trial
is not jurisdictional, but a claim-processing rule. Kontrick v. Ryan, 540 U.S. 443, 454
(2004), held that the time period provided by Federal Rule of Bankruptcy Procedure
4004 is not jurisdictional, but a claim-processing rule.
Rule 4(b), unlike Rule 4(a), is not established by statute, and it is now clear that
Rule 4(b) is not jurisdictional. This is consistent with the holdings and reasoning of
several of our sister circuits. See United States v. Watson, 623 F.3d 542, 544 (8th Cir.
2010); Virgin Islands v. Martinez, 620 F.3d 321, 327-28 (3d Cir. 2010); United States
v. Neff, 598 F.3d 320, 323 (7th Cir. 2010); United States v. Urutyan, 564 F.3d 679, 685
(4th Cir. 2009); United States v. Lopez, 562 F.3d 1309, 1311-13 (11th Cir. 2009); United
States v. Byfield, 522 F.3d 400, 403 n.2 (D.C. Cir. 2008); United States v. Frias, 521
F.3d 229, 232-34 (2d Cir. 2008); United States v. Garduno, 506 F.3d 1287, 1291 (10th
Cir. 2007); Martinez, 496 F.3d at 388-89; United States v. Sadler, 480 F.3d 932, 939-40
(9th Cir. 2007). Therefore, we are not required to dismiss late-filed criminal appeals
unless the government has raised the issue, which it can do by motion or in its briefing.
See Byfield, 522 F.3d at 403; Garduno, 506 F.3d at 1292 n.7.
While we are not required to dismiss as a jurisdictional matter, this holding does
not preclude sua sponte dismissal of late-filed criminal appeals. See United States v.
Mitchell, 518 F.3d 740, 751 (10th Cir. 2008); Fed. R. App. P. 26(b)(1). Such dismissal
is appropriate here, as Gaytan-Garza’s delay of over four years in filing his appeal
No. 10-4615 United States v. Gaytan-Garza Page 3
implicates the important judicial interests of finality of convictions and efficient
administration of claim processing.
The appeal is dismissed as untimely.