UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4807
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTONIO TEJADA-MARTINEZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:09-cr-01068-HMH-2)
Submitted: March 30, 2012 Decided: April 10, 2012
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant. Andrew Burke Moorman, OFFICE OF THE
UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Tejada-Martinez pled guilty, pursuant to a
plea agreement, to conspiracy to possess fifty grams or more of
methamphetamine with intent to distribute, 21 U.S.C. § 846
(2006) (Count One). The district court calculated
Tejada-Martinez’s advisory Guidelines range as 87-108 months
under the U.S. Sentencing Guidelines Manual (2009), but imposed
the mandatory minimum sentence of ten years’ imprisonment, which
became the Guidelines range. See USSG § 5G1.1(c)(2). On
appeal, Tejada-Martinez’s attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), suggesting that
Tejada-Martinez’s waiver of appeal rights in his plea agreement
was not valid and that the district court erred in deciding that
he did not qualify for a sentence below the mandatory minimum
under the safety valve provision in USSG § 5C1.2(a)(1-5).
Tejada-Martinez was notified of his right to file a pro se
supplemental brief, but has not filed a brief.
We first note that Tejada-Martinez’s notice of appeal
was untimely and that the district court denied an extension of
time to file based on excusable neglect. In criminal cases,
appeals periods are not jurisdictional, but are court-prescribed
“claim-processing rules” that do not affect this court’s
subject-matter jurisdiction. See Rice v. Rivera, 617 F.3d 802,
810 (4th Cir. 2010) (stating that non-statutory claim-processing
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rules are not jurisdictional); United States v. Urutyan, 564
F.3d 679, 685 (4th Cir. 2009) (“[T]h non-statutory time limits
in Appellate Rule 4(b) do not affect subject matter
jurisdiction.”). The appeal period may still be enforced by
this court when the Rule 4(b) time bar is invoked by the
government or sua sponte when judicial resources or
administration are implicated or the delay in noting the appeal
has been inordinate. United States v. Mitchell, 518 F.3d 740,
744, 750 (10th Cir. 2008). However, in this case, the
government has not invoked the Rule 4(b) time bar or moved to
dismiss the appeal as untimely. Moreover, the filing delay of
fifty-two days was not inordinate, and consideration of the
merits of the case will not waste judicial resources.
Therefore, we conclude that dismissal of the appeal based on the
untimely notice of appeal is not appropriate.
Next, we note that, in his plea agreement, Tejada-
Martinez waived the right to appeal his conviction and sentence.
A defendant may waive the right to appeal if the waiver is
knowing and intelligent. United States v. Poindexter, 492 F.3d
263, 270 (4th Cir. 2007). However, the government has not
chosen to enforce the waiver, and it is our policy not to raise
this issue sua sponte. Therefore, we need not consider whether
the waiver is dispositive of this appeal. See id. at 271
(stating that, if an Anders brief is filed in a case with an
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appellate waiver, the government’s failure to respond “allow[s]
this court to perform the required Anders review”).
Accordingly, we conclude that our review is not limited by the
appeal waiver.
With respect to the safety valve provision, the
district court had before it reliable information that
Tejada-Martinez was not entirely truthful on two occasions when
he was interviewed by the government and thus did not meet the
fifth requirement for eligibility under § 5C1.2(a). The
defendant has the burden of showing that he meets all five
criteria for application of the safety valve provision. United
States v. Henry, ___ F.3d ___, 2012 WL 745536, at *7 (4th Cir.
Mar. 8, 2012); United States v. Aidoo, ___ F.3d ___, 2012 WL
641026, at *3 (4th Cir. Feb. 29, 2012). The district court’s
determination concerning eligibility for safety valve relief is
reviewed for clear error. Henry, 2012 WL 745536 at *6.
Tejada-Martinez failed to show that he truthfully provided the
government with all information he had concerning the offense
and related conduct. See USSG § 5C1.2(a)(5); Aidoo, 2012 WL
641026 at *8 (extent of disclosure required). We are satisfied
that the district court did not clearly err in so finding, and
in deciding that he did not qualify for a sentence below the
mandatory minimum pursuant to the safety valve provision.
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States
for further review. If the client requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client. Finally, we dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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