U.S. v. Avendano-Camacho

• Citation: 786 F.2d 1392
• Decision Date: 14 April 1986
• Docket Number: AVENDANO-CAMACH,No. 85-5141,D,85-5141
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesusefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1392

786 F.2d 1392

UNITED STATES of America, Plaintiff-Appellee, v. Jesus AVENDANO-CAMACHO, Defendant-Appellant.

No. 85-5141.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 7, 1986.

April 14, 1986.

Ralph F. Hirschmann, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Alan Saltzman, Saltzman & Warren, Hollywood, Cal., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before KENNEDY and SCHROEDER, Circuit Judges, and ORRICK, ^* District Judge.

KENNEDY, Circuit Judge:

Appellant Avendano-Camacho was convicted of conspiracy to possess and distribute heroin and aiding and abetting the distribution of heroin. The judgment of conviction was entered on April 10, 1985. On May 30, 1985, appellant attempted to file a notice of appeal which was rejected as untimely. Appellant contends that his failure to file the notice within the time prescribed by Federal Rule of Appellate Procedure 4(b) was the result of the incompetency of his trial counsel. On June 4, 1985, appellant sought from the district court an extension of time to file the notice, a request denied by order docketed June 6, 1985. Appellant timely appealed this order on June 14, 1985. On appeal it is argued that Federal Rule of Appellate Procedure 4(b) denies appellant the equal protection of the laws since it permits the government thirty days in which to perfect an appeal while providing an individual defendant only ten days. Appellant also argues the district court erred in not finding that the alleged incompetency of his trial counsel in not filing the notice constituted "excusable neglect" warranting extension of the time for filing an appeal. We reject appellant's equal protection argument and, because we find ourselves without jurisdiction to hear the appeal, affirm the order of the district court.

While the equal protection clause of the Fourteenth Amendment does not by its terms apply to federal enactments, equal protection claims may be brought under the Fifth Amendment due process clause and are approached in the same manner as are claims under the Fourteenth Amendment. See Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228 n. 2, 43 L.Ed.2d 514 (1975). Classifications challenged as denying the equal protection of the laws are generally sustained if they rationally further a legitimate governmental interest. Only if the classification operates to the peculiar disadvantage of a suspect class, or interferes with a fundamental right, will it be subjected to strict scrutiny by the courts. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976). In this case there is no allegation that the classification disadvantages a suspect class. At least where the classification at issue is not based on wealth, the right to appeal is not considered a fundamental right. Bell v. Hongisto, 501 F.2d 346, 353-54 (9th Cir.1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975). Consequently, we apply the rational relation test to judge the classification here.

Applying this test, we have no difficulty finding that the different periods provided the government and criminal defendants for filing an appeal do not deny defendants the equal protection of the laws. It is reasonable to presume that it takes a large, bureaucratic organization such as the government, responsible for prosecuting thousands of cases across the country, a greater time to assess the merits of an appeal than it does an individual defendant. In reaching its decision whether or not to appeal, the government must be concerned, moreover, with the consistency of its positions and the future impact of the case, considerations that do not weigh as heavily, if at all, in the decision of the defendant.

Having resolved defendant's constitutional challenge, we observe that courts have consistently viewed the filing deadlines of Federal Rule of Appellate Procedure 4(b) as "both mandatory and jurisdictional." Smith v. United States, 425 F.2d 173, 174 (9th Cir.1970) (citing United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960)). Here the appellant has missed the initial ten-day filing period, as well as the thirty additional days provided for seeking an extension of time due to "excusable neglect." While an exception to the rule that the filing periods are jurisdictional has been recognized where an appellant has done "all he could under the circumstances" to perfect an appeal within the time...