408 F.3d 1233 (9th Cir. 2005), 02-50289, United States v. Arevalo

Docket Nº:02-50289.
Citation:408 F.3d 1233
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Marcel AREVALO, aka Psycho, Defendant-Appellant.
Case Date:May 26, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1233

408 F.3d 1233 (9th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,

v.

Marcel AREVALO, aka Psycho, Defendant-Appellant.

No. 02-50289.

United States Court of Appeals, Ninth Circuit

May 26, 2005

Submitted March 9, 2005. [*]

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Jerry Sies, Los Angeles, CA, for the defendant-appellant.

Robert E. Dugdale, Assistant United States Attorney, Terrorism and Organized Crime Section, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; David O. Carter, District Judge, Presiding. D.C. No. CR-99-00083-DOC-06.

Before: BRUNETTI, SILVERMAN, and TALLMAN, Circuit Judges.

TALLMAN, Circuit Judge.

Marcel Arevalo again attempts to appeal his sentence and conviction on two counts

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of conspiracy to distribute a controlled substance, 21 U.S.C. § 846, and one count of RICO conspiracy to distribute narcotics, 18 U.S.C. § 1962(d). He voluntarily dismissed his first appeal almost seven months before seeking to reinstate it. We dismiss for lack of jurisdiction.

I

After a ninety-four day trial, a jury convicted Arevalo on three of the seventeen charged counts, conspiracy and RICO conspiracy to distribute controlled substances. The jury found Arevalo not guilty on the remaining fourteen counts: one count of violating RICO, 18 U.S.C. § 1962(c), eight counts of violent crimes in aid of racketeering, 18 U.S.C. § 1959(a), and five counts of carrying and using a firearm in connection with a crime of violence or drug trafficking, 18 U.S.C. § 924(c).

Based on Arevalo's criminal history and jury conviction, the Presentence Report calculated a Total Offense Level of 19 and a Criminal History Category of I, and recommended that the district court sentence Arevalo to between thirty and thirty-seven months of imprisonment. At the sentencing hearing, however, the district court made several findings of fact, and increased Arevalo's Total Offense Level from 19 to 46. 1 Additionally, the district court used Arevalo's juvenile delinquency adjudications to increase his Criminal History Category from I to II.

While the sentence applicable under the Sentencing Guidelines was life, the district court sentenced Arevalo on May 29, 2002, to 240 months--a sentence that corresponded with the twenty year maximum available for RICO violations. 18 U.S.C. § 1963(a). Arevalo filed a timely appeal in the district court on June 6, 2002. Fed. R.App. P. 4(b)(1)(A)(i).

On December 12, 2003, Arevalo moved to voluntarily dismiss his appeal, stating in his supporting papers that:

I, ... having been advised of my right to appeal from the judgment of conviction and sentence ... and having discussed the matter with my attorney, do not desire to pursue my appeal of the said conviction and sentence and hereby waive any right to appeal.

We granted his motion and dismissed his appeal on January 9, 2004. See Fed. R.App. P. 42(b) ("The circuit clerk may dismiss a docketed appeal if the parties file a signed dismissal agreement[.]").

Almost seven months later, on August 2, 2004, Arevalo moved to reinstate his appeal. Arevalo argued that in the wake of the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and our decision in United States v. Ameline, 376 F.3d 967 (9th Cir.2004), amended by 400 F.3d 646 (9th Cir.), vacated pending en banc review by 401 F.3d 1007 (9th Cir.2005), Arevalo had "a viable legal basis for challenging his sentence." The Appellate Commissioner granted his motion on August 3, 2004.

On August 11, 2004, the Government filed a motion for reconsideration of the August 3, 2004, order reinstating Arevalo's appeal. A motions panel subsequently denied the Government's motion to reconsider reinstatement on August 16, 2004, and the Clerk of the Court assigned this panel to consider the merits of Arevalo's reinstated appeal.

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Arevalo presents three claims of error on appeal: (1) that the district court unconstitutionally enhanced his sentence based on facts not found by a jury beyond a reasonable doubt in violation of the Sixth Amendment, see United States v. Booker, --- U.S. ----, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); (2) that the district court unconstitutionally increased his Criminal History Category based on a term he served in prison for a juvenile delinquency adjudication made without a jury in violation of the Sixth Amendment and his right to equal protection; and (3) that the district court erred in refusing to suppress wiretap evidence.

We dismiss Arevalo's appeal for lack of jurisdiction because he cannot show why the time limitation which prevents an appellate court from exercising jurisdiction over his untimely reinstated appeal can be avoided.

II

Under the Federal Rules of Appellate Procedure 4(b), a defendant must file his or her appeal "within 10 days ... [of] either the judgment or the order being appealed[.]" Fed. R.App. P. 4(b). The time limits on filing a notice of appeal are "mandatory and jurisdictional." United States v. Houser, 804 F.2d 565, 568 (9th Cir.1986). Consequently, failure to file a timely or effective notice of appeal renders us without jurisdiction to consider the merits of the petitioner's claims. See id. The procedural history of Arevalo's appeal is best analyzed by breaking it down into two steps: his voluntary dismissal of a timely filed appeal and his attempt to reinstate the same.

A

We first consider the effect of an appeal, timely filed, but voluntarily dismissed. In these cases we believe that the approach taken by the Fifth, Sixth, and Seventh Circuits is most consistent with the purpose of the appellate rules. They have ruled that once an appeal is voluntarily dismissed, appellate courts no longer have jurisdiction over the merits of the appeal.

As the Seventh Circuit explained:

A notice of appeal filed and dismissed voluntarily is gone, no more effective in conferring jurisdiction on a court than a notice never filed. Attempts to resurrect notices of appeal must be treated the same as belated notices of appeal. The time limits for filing an appeal require the losing party to choose between accepting the judgment and pursuing appellate review. The loser may not dither. Filing and dismissing an appeal prevents appellate review, and we do not think that it should place the judgment in limbo--open to review whenever the losing side changes its mind. The structure of the rules is set against such delay and uncertainty.

Barrow v. Falck, 977 F.2d 1100, 1103 (7th Cir.1992) (citation omitted); Futernick v. Sumpter Township, 207 F.3d 305, 312 (6th Cir.2000) (same) (quoting Barrow with approval); Williams v. United States, 553 F.2d 420, 422 (5th Cir.1977) (voluntarily dismissing a timely filed appeal "place[s][the appellant] in the same position as if [he or she] had never filed a notice of appeal in the first place"); see also United States v. Outen, 286 F.3d 622, 631 (2d Cir.2002) ("A withdrawal of an appeal is an expression of intent of the parties[ ] not to pursue the appeal any further and brings the appeal to an end."); id. at 632 n. 5 (quoting Barrow with approval). Therefore, we were deprived of our jurisdiction to review the...

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