FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 12, 2015
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-3195
(D.C. No. 2:14-CR-20096-JAR-7)
OMAR FRANCISCO (D. Kan.)
ORDUNO-RAMIREZ,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before KELLY, LUCERO, and GORSUCH, Circuit Judges.
Defendant Omar Francisco Orduno-Ramirez appeals the district court’s order
denying his motion to reopen his detention hearing under 18 U.S.C. § 3142(f). For
the reasons that follow, we affirm the district court’s order.
I. Background
Defendant was charged with numerous drug-related crimes in a
multi-defendant indictment in the United States District Court for the District of
*
This panel has determined unanimously to grant the parties’ request for a
decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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and judgment is not binding precedent, except under the doctrines of law of the case,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.
Kansas. Defendant sought release pending trial, which is set for April 2016. The
magistrate judge held a detention hearing and ordered his release subject to electronic
monitoring and a curfew. The release order was stayed upon the government’s
motion.
After an extensive hearing, the district court found by a preponderance of the
evidence that Defendant failed to rebut the presumption that no conditions would
reasonably assure his appearance and found by clear and convincing evidence that no
conditions would reasonably assure the community’s safety. The court therefore
ordered that Defendant be detained pending trial. Defendant did not appeal from that
decision. Six months later, Defendant filed a motion to reopen his detention hearing
pursuant to 18 U.S.C. § 3142(f). The district court denied the motion after finding
that Defendant did not offer any new information that was unavailable at the time of
the detention hearing and, even if it was new, the information would not materially
change the court’s earlier findings. Defendant now appeals.
II. Discussion
In his memorandum brief, Defendant states that he “appeals from the Court’s
decisions denying him pretrial release.” Aplt. Mem. Br. at 5 (emphasis added). But
in the notice of appeal, Defendant appealed only his “motion for reconsideration of
revocation of [release].” Aplee. Supp. App. at 1. We will therefore not review the
merits of the district court’s initial detention decision. See Fed. R. App. P. 3(c)(1)(B)
(providing that notice of appeal must “designate the judgment, order, or part thereof
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being appealed”); Cunico v. Pueblo Sch. Dist. No. 60, 917 F.2d 431, 444 (10th Cir.
1990) (“Our appellate review is limited to final judgments or parts thereof that are
designated in the notice of appeal.”).
Even if the notice of appeal were to be construed to include the initial
detention decision, see Employers Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d
1153, 1164 n.9 (10th Cir. 2010), an appeal from that decision would be untimely as
that order was entered on January 23, 2015, see Fed. R. App. P. 4(b)(1)(A)(i)
(requiring notice of appeal to be filed within 14 days after the order being appealed).
As discussed below, Defendant’s appeal from the denial of his motion to reopen was
also untimely, but we find good reason to excuse Defendant’s untimely appeal of that
order. There is no similar basis to excuse the untimeliness of an appeal from the
initial detention decision.
The district court issued the order being appealed on July 29, 2015. The notice
of appeal was therefore due on August 12, 2015. See id. But Defendant’s attorney
did not give him a copy of the order until a meeting on August 13, 2015—one day
after the filing deadline.
On August 17, 2015, Defendant mailed a pro se notice of appeal from the
prison. It was postmarked on August 20, 2015, and filed on August 24, 2015.
Defendant did not ask for, and the district court did not grant, a thirty-day extension
to file his notice of appeal. See Fed. R. App. P. 4(b)(4) (“Upon a finding of
excusable neglect or good cause, the district court may—before or after the time has
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expired, with or without motion and notice—extend the time to file a notice of appeal
for a period not to exceed 30 days from the expiration of the time otherwise
prescribed by this Rule 4(b).”).
A timely appeal in a criminal case is not jurisdictional but rather is an
“inflexible claim-processing rule[].” United States v. Garduño, 506 F.3d 1287,
1290–91 (10th Cir. 2007) (internal quotation marks omitted). “Thus, a criminal
defendant’s failure to file a timely notice of appeal does not deprive us of
jurisdiction.” United States v. Randall, 666 F.3d 1238, 1241 (10th Cir. 2011); see
also United States v. Mitchell, 518 F.3d 740, 744 (10th Cir. 2008) (explaining that
dismissal based on a defendant’s failure to file a timely notice of appeal “is no longer
mandatory and jurisdictional” since Garduño).
Defendant’s counsel did not provide him with a copy of the order being
appealed until the day after the deadline to file a notice of appeal had passed. His
predicament therefore resembles the situation in Randall. The defendant in Randall
stated he did not receive the order being appealed until the day of the deadline to file
a notice of appeal. 666 F.3d at 1241. Assuming that was indeed so, we
acknowledged he might be able to show good cause for his delay if we remanded the
matter for the district court to determine whether a thirty-day extension was
appropriate under Rule 4(b)(4). Id. But we did not take that extra step, opting
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instead to exercise our discretion to consider the appeal. Id. We follow the same
course here.1
Although we exercise our discretion to consider Defendant’s appeal, he fails to
address in his brief how the district court erred in denying his motion to reopen the
detention hearing. Instead, his brief focuses on alleged errors in the district court’s
findings used to support the court’s initial detention decision. But, as addressed
above, that decision is not before us. The government asserts that Defendant’s
appeal of the relevant order fails because it has not been adequately briefed. We
agree. As we have explained, “[i]ssues will be deemed waived if they are not
adequately briefed.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841
(10th Cir. 2005) (internal quotation marks omitted).
III. Conclusion
We affirm the district court’s order denying Defendant’s motion to reopen his
detention hearing.
Entered for the Court
Per Curiam
1
The government initially filed a motion to dismiss the appeal as untimely.
Upon learning that Defendant’s counsel did not provide him with a copy of the order
until after the deadline to file an appeal had passed, the government withdrew its
motion.
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