[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 07-11654 U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 25, 2009
D. C. Docket No. 06-00062-CR-CG THOMAS K. KAHN
CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE EDUARDO LOPEZ,
a.k.a. Lielo,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(March 25, 2009)
(As Amended 4/8/09)
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before BARKETT, PRYOR and FARRIS,* Circuit Judges.
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
PRYOR, Circuit Judge:
This appeal is on remand from the Supreme Court of the United States for us
to reconsider whether the deadline for a defendant to file a notice of appeal in a
criminal case under Federal Rule of Appellate Procedure 4(b) is jurisdictional.
Jose Eduardo Lopez pleaded guilty to conspiracy to possess with intent to
distribute methamphetamine. 21 U.S.C. § 846. After the district court granted
Lopez’s construed motion for an extension of time in which to file a notice of
appeal, this Court sua sponte dismissed Lopez’s appeal for lack of jurisdiction
because Lopez’s notice of appeal was untimely under Rule 4(b). The Supreme
Court vacated that order and remanded for further consideration in the light of
Bowles v. Russell, 551 U.S. __, 127 S. Ct. 2360 (2007). Lopez v. United States,
128 S. Ct. 806 (2007). After reconsideration, review of the record, supplemental
briefs, and oral arguments, we agree with Lopez and the United States that the time
limits for a criminal defendant under Rule 4(b) are not jurisdictional because they
are not based on a federal statute. Although the deadline in Rule 4(b) for Lopez’s
appeal is not jurisdictional, we grant the request of the United States to dismiss
Lopez’s appeal as untimely.
I. BACKGROUND
Lopez pleaded guilty to conspiracy to possess with intent to distribute
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methamphetamine. 21 U.S.C. § 846. The district court sentenced Lopez at the low
end of the guidelines range to a term of 235 months of imprisonment, followed by
five years of supervised release. Final judgment was entered on February 6, 2007.
The ten-day period for filing a notice of appeal expired on February 21,
2007. Fed. R. App. P. (4)(b)(1)(A). The 30-day period for extending the time to
file a notice of appeal expired on March 23, 2007. Fed. R. App. P. 4(b)(4). On
April 9, 2007, the clerk of the district court received and docketed Lopez’s pro se
“Motion for Appeal,” dated March 29, 2007. The district court construed Lopez’s
motion as a motion for an extension of time in which to file a notice of appeal and
granted that motion on April 30, 2007.
On May 17, 2007, this Court sua sponte dismissed Lopez’s appeal for lack
of jurisdiction. Because Lopez was incarcerated at the time of his “Motion for
Appeal,” this Court deemed that motion filed on March 29, 2007. Fed. R. App. P.
4(c)(1); Houston v. Lack, 487 U.S. 266, 276, 108 S. Ct. 2379, 2385 (1988). This
Court ruled that Lopez’s notice of appeal was untimely and that the district court
“was without jurisdiction” to grant Lopez’s construed motion to file an out-of-time
appeal because Rule 4(b)(4) allowed the district court, upon a finding of excusable
neglect or good cause, to extend the time for Lopez to file a notice of appeal by no
more than 30 days from the deadline of February 21, 2007. Fed. R. App. P.
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4(b)(4); United States v. Ward, 696 F.2d 1315, 1317–18 (11th Cir. 1983). Lopez
filed a motion for reconsideration and argued that his notice of appeal should have
been construed as a motion to vacate because it asserted claims of ineffective
assistance of counsel, 28 U.S.C. § 2255, and that his case should be remanded to
the district court. This Court denied Lopez’s motion for reconsideration.
The Supreme Court later granted Lopez’s petition for a writ of certiorari.
Lopez, 128 S. Ct. 806. The Supreme Court vacated our order of dismissal and
remanded “for further consideration in light of Bowles v. Russell, 551 U.S. __, 127
S. Ct. 2360, 168 L. Ed.2d 96 (2007).” Id. On remand from the Supreme Court,
this Court issued to the parties jurisdictional questions about the time limits in Rule
4(b). Lopez and the United States then responded to the jurisdictional questions.
II. STANDARDS OF REVIEW
We review de novo the interpretation of rules of federal procedure. Vencor
Hosps., Inc. v. Standard Life & Accident Ins. Co., 279 F.3d 1306, 1308 (11th Cir.
2002). We are required to examine our jurisdiction sua sponte, Finn v. Prudential-
Bache Sec., Inc., 821 F.2d 581, 585 (11th Cir. 1987), and we review jurisdictional
issues de novo. AT&T Mobility, L.L.C. v. Nat’l Ass’n for Stock Car Auto Racing,
Inc., 494 F.3d 1356, 1360 (11th Cir. 2007).
III. DISCUSSION
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Our discussion is divided in two parts. We first address whether, in the light
of Bowles, the deadline in Federal Rule of Appellate Procedure 4(b) for a
defendant to file a notice of appeal in a criminal case is jurisdictional. We then
address Lopez’s argument that the United States forfeited its objection to his
untimely notice of appeal.
A. The Time Limits For Criminal Defendants Under Federal Rule of Appellate
Procedure 4(b) Are Not Jurisdictional.
Both Lopez and the United States contend that, in the light of Bowles, the
deadline in Federal Rule of Appellate Procedure 4(b) for a defendant to file a
notice of appeal in a criminal case is not jurisdictional. We agree. Our precedent
that the deadline in Rule 4(b) is jurisdictional is no longer good law.
Before Bowles, we held that the timely filing of a notice of appeal by a
defendant in a criminal case under Rule 4(b) is a mandatory prerequisite to the
exercise of appellate jurisdiction. See United States v. Machado, 465 F.3d 1301,
1305 (11th Cir. 2006). We stated, “Filing a timely notice of appeal is ‘mandatory
and jurisdictional’ and if a defendant fails to do so, a court of appeals is ‘without
jurisdiction to review the decision on the merits.’” Id. (quoting Budinich v. Becton
Dickinson and Co., 486 U.S. 196, 203, 108 S. Ct. 1717, 1722 (1988)). We remain
bound by the rule of our prior precedent “unless and until it is overruled or
undermined to the point of abrogation by the Supreme Court or by this court sitting
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en banc.” United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).
The Supreme Court explained in Bowles that filing deadlines or time limits
are jurisdictional only when Congress establishes them, because “[w]ithin
constitutional bounds, Congress decides what cases the federal courts have
jurisdiction to consider.” 551 U.S. at __, 127 S. Ct. at 2365. Based on that
reasoning, the Court held that the deadline in Rule 4(a) for filing a notice of appeal
in a civil case is mandatory and jurisdictional because it is grounded in a federal
statute, 28 U.S.C. § 2107. Bowles, 551 U.S. at __, 127 S. Ct. at 2363–66. Bowles
is the first decision of the Supreme Court to consider whether the deadlines for
filing an appeal under Rule 4 are jurisdictional, but Bowles is the third recent
decision of the Court that has distinguished rules of limitation that implement a
statutory directive from time limitations in court-adopted rules of procedure. See
also Eberhart v. United States, 546 U.S. 12, 15–19, 126 S. Ct. 403, 404–07 (2005)
(per curiam) (Federal Rule of Criminal Procedure 33, which imposes a time limit
for filing a post-conviction motion for a new trial, is a nonjurisdictional rule for
processing claims and an objection of untimeliness may be forfeited); Kontrick v.
Ryan, 540 U.S. 443, 452–56, 124 S. Ct. 906, 914–16 (2004) (because the deadline
in Federal Rule of Bankruptcy Procedure 4004 for objecting to a discharge of debt
is not grounded in a federal statute, its deadline is a nonjurisdictional rule for
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processing claims and an objection of untimeliness may be forfeited). The
Supreme Court has made clear that only rules of limitation that implement a
statutory directive may be mandatory and jurisdictional. Bowles, 551 U.S. at __,
127 S. Ct. at 2363–65. Time limitations in court-adopted rules of procedure are
not jurisdictional; those deadlines provide rules for processing claims that “assure
relief to a party properly raising them, but do not compel the same result if the
party forfeits them.” Eberhart, 546 U.S. at 19, 126 S. Ct. at 407. In Bowles, the
Supreme Court distinguished, for example, its deadline of 90 days for filing a
petition for a writ of certiorari in a civil case, S. Ct. R. 13.1, which is grounded in a
statute, 28 U.S.C. § 2101(c), and is, therefore, jurisdictional, from its deadline of
90 days for filing the same kind of petition, under the same rule, in a criminal case,
which is not grounded in a statute and is, therefore, not jurisdictional. 551 U.S. at
__, 127 S. Ct. at 2365.
Although “[w]e acknowledge the strength of the prior panel precedent rule
in this circuit[,]” the decision in Bowles “is clearly on point and has undermined
[our precedent] to the point of abrogation.” Archer, 531 F.3d at 1352. In Archer,
we held that a recent decision of the Supreme Court, Begay v. United States, __
U.S. __, 128 S. Ct. 1581 (2008), established “a new standard to evaluate which
crimes constitute ‘violent felonies’ and ‘crimes of violence[.]’” 531 F.3d at 1352.
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That new standard undermined our prior panel precedent to the point of abrogation
even though the decision of the Supreme Court addressed a different crime (drunk
driving) and a different sentencing law (the Armed Career Criminal Act, 18 U.S.C.
§ 924(e)) than the crime (carrying a concealed weapon) and the sentencing law (the
career offender provision of the Sentencing Guidelines, U.S.S.G. § 4B1.2(a)) at
issue in Archer. The same is true here where the new standard of Bowles governs
whether the time limit for filing a notice of appeal is jurisdictional even though
Bowles addressed a different subsection of the same rule of procedure.
We agree with our sister circuits that, because “there is no statute imposing
Rule 4(b)’s time restrictions–or any other–on would-be criminal appellants[,]”
United States v. Sadler, 480 F.3d 932, 938 (9th Cir. 2007), the deadline in Rule
4(b) for criminal defendants is not jurisdictional. After Bowles, all of our sister
circuits that have considered whether the time limits in Rule 4(b) for criminal
defendants are jurisdictional have concluded that those time limits are not
jurisdictional because they are not based on a federal statute. See United States v.
Byfield, 522 F.3d 400, 403 n.2 (D.C. Cir. 2008) (per curiam); United States v.
Frias, 521 F.3d 229, 233–34 (2d Cir. 2008); United States v. Garduno, 506 F.3d
1287, 1290–91 (10th Cir. 2007); United States v. Martinez, 496 F.3d 387, 388–89
(5th Cir. 2007) (per curiam). Additionally, before Bowles, the Ninth Circuit held
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that, based on the decisions of the Supreme Court in Eberhart and Kontrick, the
time limits in Rule 4(b) are not jurisdictional. See Sadler, 480 F.3d at 936–40.
Because the deadline in Rule 4(b) for a defendant to file a notice of appeal in a
criminal case is not grounded in a federal statute, we hold that it is not
jurisdictional.
B. The Government Has Not Forfeited Its Objection to Lopez’s Untimely Notice of
Appeal.
Lopez argues that the government has forfeited its objection to his
untimely notice of appeal by failing to raise it before the district court. We
disagree. The government was not required to object in the district court to
Lopez’s untimely filing.
“We, not the district court, are the ultimate arbiters of compliance with the
rules governing the appellate process.” Sadler, 480 F.3d at 940. Indeed, an
appellee may object to the timeliness of an appeal for the first time in its merit
brief. See Garduno, 506 F.3d at 1292; Sadler, 480 F.3d at 940–42; United States v.
Singletary, 471 F.3d 193, 196–97 (D.C. Cir. 2006). “There is no provision in the
Federal Rules of Criminal Procedure or the Federal Rules of Appellate Procedure
requiring earlier objection to a late notice of appeal.” Garduno, 506 F.3d at 1292.
Lopez argues that the decision of the Supreme Court in Eberhart supports his
argument that the government has forfeited the issue of timeliness, but Eberhart is
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distinguishable. In Eberhart, the Supreme Court addressed forfeiture in the context
of a motion for a new trial under Federal Rule of Criminal Procedure 33. 546 U.S.
at 13–14, 126 S. Ct. at 403–04. The Court held that the government had forfeited
its objection to the defendant’s untimely motion for a new trial because it “failed to
raise a defense of untimeliness until after the District Court had reached the
merits[.]” Id. at 19, 126 S. Ct. at 407. “The government had ignored the timeliness
issue in its opposition to the new trial motion filed with the district court,
addressing only the merits.” Sadler, 480 F.3d at 941. As the Ninth Circuit stated
in distinguishing Eberhart, “The district court was the appropriate arbiter of the
issue, as it retained jurisdiction over the case until it disposed of the motion for a
new trial.” Id. Unlike a motion for a new trial, which is within the purview of the
district court, this case “involves the timing of the filing of a notice of appeal.” Id.
That issue is within the purview of this Court, not the district court.
Because the government has not forfeited its objection to Lopez’s untimely
notice of appeal, we must apply the time limits of Rule 4(b). “The timeliness
requirements of [Rule 4(b)] . . . ‘assure relief to a party properly raising them.’”
Garduno, 506 F.3d at 1291 (quoting Eberhart, 546 U.S. at 19, 126 S. Ct. at 407).
Rule 4(b)(4) permitted the district court, upon a finding of excusable neglect or
good cause, to extend the time for Lopez to file a notice of appeal by no more than
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30 days from the deadline of February 21, 2007. Fed. R. App. P. 4(b)(4); Ward,
696 F.2d at 1317–18. That period ended on March 23, 2007, but Lopez did not
even file his “Motion for Appeal” until March 29, 2007. At that late date, the
district court, even upon a finding of excusable neglect or good cause, was not
permitted to grant Lopez’s untimely motion.
IV. CONCLUSION
Lopez’s appeal is
DISMISSED.
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