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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2006 Decided December 19, 2006
No. 04-3151
UNITED STATES OF AMERICA,
APPELLEE
v.
DANIEL SINGLETARY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 00cr00410-01)
Thomas J. Saunders, appointed by the court, argued the
cause and filed the brief for appellant.
Mary Patrice Brown, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney at the time the brief was filed, and Roy
W. McLeese III, Assistant U.S. Attorney.
Before: HENDERSON, ROGERS and BROWN, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: This delayed appeal from a
judgment of conviction requires the court to consider the effect
of the Supreme Court’s clarification in Eberhart v. United
States, 126 S. Ct. 403 (2005), that certain procedural rules
setting inflexible time limits are claim-processing rules that do
not affect a court’s subject-matter jurisdiction and consequently,
a defense of untimeliness may be forfeited if not properly raised.
Id. at 406-07. In Eberhart, the Court held that the government
had forfeited its objection to the timeliness of a motion for a new
trial pursuant to FED. R. CRIM. P. 33 by failing to raise that
defense until appeal, after the district court had reached the
merits. Id. at 407. Of significance here, the Court explained
that its decision in United States v. Robinson, 361 U.S. 220
(1960), holding that FED. R. CRIM. P. 37(a)(2), the precursor to
FED. R. APP. P. 4(b),1 was “mandatory and jurisdictional,” in fact
reflected “the central point . . . that when the Government
objected to a filing untimely under Rule 37, the court’s duty to
dismiss the appeal was mandatory.” Eberhart, 126 S. Ct. at 406.
Following resentencing on April 28, 2004 pursuant to this
court’s remand,2 Singletary filed a pro se “Notice of Delayed
1
FED. R. APP. P. 4(b)(1)(A) provides:
In a criminal case, a defendant’s notice of appeal
must be filed in the district court within 10 days after
the later of: (i) the entry of either the judgment or the
order being appealed; or (ii) the filing of the
government’s notice of appeal.
2
Singletary was charged in a superseding indictment with
three counts of unlawful use of a communication facility, 21 U.S.C.
§ 843(b), two counts of unlawful distribution of five grams or more of
3
Appeal” on October 21, 2004. He now contends that he is
entitled to be resentenced because the district court acted under
a “mandatory” interpretation of the Sentencing Guidelines and
his appeal was pending when United States v. Booker, 543 U.S.
220 (2005), was decided. On June 23, 2005, this court granted
leave for Singletary to proceed in forma pauperis and appointed
counsel. The court also directed Singletary to respond to an
order to show cause why his appeal should not be dismissed as
untimely. Thereafter, the court directed the parties to address in
their briefs whether the court may hear the appeal given the
government’s failure to object to its untimeliness. The parties
have now done so.
Singletary filed his notice of appeal approximately four
months after it was due under FED. R. APP. P. 4(b). The
government objected to the untimeliness of the appeal for the
first time in its initial brief in this court. Singletary contends
that the government has forfeited this objection because it had
notice from the face of his “Pro Se Delayed Notice of Appeal of
cocaine base, id. § 841(a)(1), (b)(1)(B)(iii); 18 U.S.C. § 2, one count
of unlawful distribution of fifty grams or more of cocaine base, 21
U.S.C. § 841(a)(1), (b)(1)(A)(iii); 18 U.S.C. § 2, one count of
unlawful distribution of cocaine base within 1000 feet of a school, 21
U.S.C. § 860(a); 18 U.S.C. § 2, and one count of unlawful possession
of a firearm and ammunition by a convicted felon, 18 U.S.C.
§ 922(g)(1). Following his conviction by a jury, the district court
sentenced Singletary to concurrent terms of 292 months’
imprisonment on three counts and 48 months’ imprisonment on three
other counts, followed by ten years’ supervised release; two counts
were vacated as lesser included offenses, and the government
dismissed the gun and ammunition count. On appeal, this court
affirmed the conviction but remanded the case for resentencing
because the total offense level had been miscalculated by the district
court. United States v. Singletary, 69 F. App’x 468, 468-69 (D.C. Cir.
2003).
4
Sentence on Remand” that a timeliness issue was presented. In
his view, the question of the court’s jurisdiction to hear his
appeal is controlled by the Supreme Court’s clarification in
Eberhart of the term “jurisdictional.” See 126 S. Ct. at 404-07.
In Eberhart, the defendant filed a timely motion for a new
trial pursuant to FED. R. CRIM. P. 33 and then, months later, filed
an untimely supplemental memorandum in support of that
motion. The government opposed the memorandum on the
merits; the district court granted a new trial. On appeal the
government objected for the first time to the untimeliness of the
supplemental memorandum. The Seventh Circuit Court of
Appeals held that the time limit in FED. R. CRIM. P. 33 was
mandatory and jurisdictional and therefore the objection was not
forfeited by the government. United States v. Eberhart, 388
F.3d 1043, 1049 (7th Cir. 2004). In reversing, the Supreme
Court instructed that the “label ‘jurisdictional’ [should] not [be
used] for claim-processing rules, but only for prescriptions
delineating the classes of cases (subject-matter jurisdiction) and
persons (personal jurisdiction) falling within a court’s
adjudicatory authority.” Eberhart, 126 S. Ct. at 405 (quoting
Kontrick v. Ryan, 540 U.S. 443, 455 (2004)) (internal quotation
marks omitted). The Court concluded, in light of their structural
similarity to two Federal Rules of Bankruptcy Procedure
construed in Kontrick, that FED. R. CRIM. P. 33 and FED. R.
CRIM. P. 45(b) are both claim-processing rules. Eberhart, 126
S. Ct. at 405. As such, they “assure relief to a party properly
raising them, but do not compel the same result if the party
forfeits them.” Id. at 407.
Most pertinently, the Court in Eberhart acknowledged that
courts “have more than occasionally used the term
‘jurisdictional’ to describe emphatic time prescriptions in rules
of court.” Id. at 406 (quoting Kontrick, 540 U.S. at 454)
(internal quotation marks omitted). In Robinson, for example,
5
the Court concluded that FED. R. CRIM. P. 37(a)(2) was
mandatory and jurisdictional, observing that “courts have
uniformly held . . . the taking of an appeal within the prescribed
time” as such. 361 U.S. at 229. Clarifying that holding, the
Eberhart Court declared:
The resulting imprecision [in the use of the word
“jurisdictional”] has obscured the central point of the
Robinson case – that when the Government objected to
a filing untimely under Rule 37, the court’s duty to
dismiss the appeal was mandatory. The net effect of
Robinson, viewed through the clarifying lens of
Kontrick, is to admonish the Government that failure to
object to untimely submission entails forfeiture of the
objection, and to admonish defendants that timeliness
is of the essence, since the Government is unlikely to
miss timeliness defects very often.
126 S. Ct. at 406-07.
Because Singletary concedes that his notice of appeal was
untimely under FED. R. APP. P. 4(b), his view that this court has
jurisdiction to hear his appeal can succeed only if he can show
both that the rule is nonjurisdictional and that the government
forfeited its untimeliness objection. For purposes of this appeal
it suffices to hold, assuming FED. R. APP. P. 4(b) is a case-
processing rule, that because Singletary fails to demonstrate that
the government forfeited its objection his appeal must be
dismissed as untimely.
The government correctly points out that no rule, order,
internal procedure, or published guidance from this court
required it to object to the untimeliness of the appeal under FED.
R. APP. P. 4(b) before it filed its initial brief. There is no
provision in the Federal Rules of Criminal Procedure or the
6
Federal Rules of Appellate Procedure that requires a party to
address the untimeliness of an appeal by filing a motion to
dismiss. Nor is there such a requirement in the Circuit Rules of
the United States Court of Appeals for the District of Columbia
Circuit. Although there is mandatory language in Circuit Rule
27(g)(1), providing that “[a]ny motion which, if granted, would
dispose of the appeal or petition for review in its entirety, or
transfer the case to another court, must be filed within 45 days
of the docketing of the case in this court,” we agree with the
Tenth Circuit that the local rule is best read as permissive,
applying only to situations in which a party chooses to make a
motion. See United States v. Clayton, 416 F.3d 1236, 1238-39
(10th Cir. 2005), cert. denied, 126 S. Ct. 1110 (2006). This
circuit’s Handbook of Practice and Internal Procedures (2006)
states only that “[p]arties are particularly encouraged to file
dispositive motions where a sound basis exists for summary
disposition.” Id. at 28. Moreover, the published Frequently
Asked Questions, United States Court of Appeals for the District
of Columbia Circuit (2006) makes the voluntary nature of filing
a motion to dismiss explicit:
[I]f the appeal of petition for review was filed out-of-
time, . . . then a motion to dismiss is appropriate. If the
jurisdictional question is particularly difficult, parties
may wait and raise the question in their briefs. In other
words, a jurisdictional argument is not waived if it is
not raised in a motion within 45 days of the filing of
the appeal.
Id. at 34-35.
Although the court directed Singletary to respond to an
order to show cause, no response was requested from the
government, and it was under no obligation to volunteer a
response. Cf. Day v. McDonough, 126 S. Ct. 1675, 1684 (2006).
7
Additionally, unlike in Eberhart and Kontrick, the government
did not address the merits of Singletary’s appeal before it filed
its brief setting forth its untimeliness objection. See Eberhart,
126 S. Ct. at 407; Kontrick, 540 U.S. at 458; see also United
States v. Robinson, 430 F.3d 537, 541-42 (2d Cir. 2005).
Consequently, although it is obviously desirable from the
perspective of the parties and the court for untimely appeals to
be promptly dismissed, the absence of a requirement to file a
motion to dismiss prior to filing an appellate brief means that the
government did not forfeit its objection that Singletary’s appeal
was untimely by first raising this defense in its initial brief on
appeal. Accordingly, we dismiss the appeal as untimely and do
not reach the merits.