U.S. v. Madrid, 09–2262.

• Decision Date: 10 February 2011
• Docket Number: No. 09–2262.,09–2262.
• Citation: 633 F.3d 1222
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Eric M. MADRID, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

633 F.3d 1222

UNITED STATES of America, Plaintiff–Appellee,

v.Eric M. MADRID, Defendant–Appellant.

No. 09–2262.

United States Court of Appeals, Tenth Circuit.

Feb. 10, 2011.

Joel M. Carson III, Roswell, NM, for Defendant–Appellant.^*Gregory Fouratt, Assistant United States Attorney, (Kenneth J. Gonzales, United States Attorney, and Laura Fashing, Assistant United States Attorney, on the brief), Albuquerque, NM, for Plaintiff–Appellee.Before KELLY, BALDOCK, and HARTZ, Circuit Judges.HARTZ, Circuit Judge.

This appeal requires us to determine whether the government properly challenged the district court's order granting an extension of time to file a notice of appeal and, if so, whether the grant was proper. We hold that the government's motion to dismiss the appeal as untimely was a proper vehicle to challenge the extension order, the government did not forfeit its right to challenge the order by failing to move the district court to reconsider the order, and the order must be reversed. We therefore dismiss the appeal.

Eric M. Madrid pleaded guilty in the United States District Court for the District of New Mexico to one count of being a felon in possession of a firearm, see 18 U.S.C. § 922(g), and was sentenced to 77 months' imprisonment. Judgment was entered on September 17, 2009. Mr. Madrid filed a notice of appeal on October 19, three weeks after expiration of the 10–day period to appeal. See Fed. R.App. P. 4(b)(1) (2009) (repealed December 1, 2009).¹

Realizing that his notice was untimely, Mr. Madrid filed on October 29 a motion under Federal Rule of Appellate Procedure 4(b)(4) to extend the time in which to file his notice, claiming excusable neglect. His sole ground for asserting excusable neglect was that “trial counsel had only filed one notice of appeal in federal court in the last fifteen years and made a mistake in thinking thirty days was allowed to file the notice of appeal.” R., Vol. 1, at 195. In the motion he acknowledged that it was opposed by the government. Although the district court's local rules gave the government 14 days to respond to the motion, the district court granted it on November 3, 2009. The court's one-sentence order did not mention excusable neglect.

On November 9 the government moved this court to dismiss the appeal on the ground that an attorney's confusion about deadlines does not constitute excusable neglect. Mr. Madrid filed a response to the motion in which he argued (1) “that if a notice of appeal is filed within the 30[-day] extension period, the District Court can act on the motion and consider excusable neglect”; (2) that his counsel's confusion about filing deadlines constituted excusable neglect; (3) that he “did not tell counsel he wanted to file an appeal until the ten (10) days had passed[,] ... due in part because effective communication has been l[o]st between counsel and client”; (4) that he “should not be denied his right to appeal as it was a condition of his plea”; and (5) that he “should not have to go through an extended § 2255 process in order to have an appeal heard.” Appellant's Resp. to Mot. to Dismiss for Late Filing of Notice of Appeal at 1–2, United States v. Madrid, No. 09–2262 (10th Cir. Nov. 22, 2009). We reserved ruling on the motion until the appeal was fully briefed.

In his brief-in-chief Mr. Madrid raises only the merits of his appeal (which concern the denial of a motion to suppress). The government's answer brief addresses timeliness along with the merits of the appeal. On the timeliness issue it repeats the assertion in its dismissal motion that confusion about deadlines does not rise to the level of excusable neglect. It also addresses the other grounds for excusable neglect claimed by Mr. Madrid in his response to the dismissal motion and contends that we should enforce the time requirement sua sponte even if the government failed to object properly to the district court's extension of time. In his reply brief Mr. Madrid argues that the government forfeited its right to have the time bar of Federal Rule of Appellate Procedure 4(b) enforced because it failed to raise before the district court (in a motion to reconsider or otherwise) the alleged impropriety of finding excusable neglect. He also disputes the government's argument that the timeliness issue deserves sua sponte action by this court.

I. DISCUSSION

We hold (1) that the government did not need to file a cross-appeal to challenge the district court's order extending Mr. Madrid's time to appeal, because an appellee can challenge an extension order by filing a motion to dismiss in this court; (2) that the government did not forfeit its right to challenge the extension order by not raising the issue in district court, because this court acquired appellate jurisdiction before expiration of the government's time to respond in district court to Mr. Madrid's motion for extension of time; and (3) that the district court improperly granted an extension, because ignorance of appellate deadlines is not excusable neglect. We now proceed to explain our holdings.

A. Propriety of Motion in This Court

Our first concern is whether the government's motion to dismiss the appeal was a proper procedure for challenging the district court's grant of an extension of time to Mr. Madrid to file his notice of appeal. There is authority for the proposition that an appellee challenging such an extension of time should file a cross-appeal. See Amatangelo v. Borough of Donora, 212 F.3d 776, 780 (3d Cir.2000); 16A Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Catherine T. Struve, Federal Practice & Procedure § 3950.3 at 307–08 (4th ed. 2008) (relying on Amatangelo without further discussion). But we are not persuaded.

The office of a cross-appeal is to give the appellee more than it obtained by the lower-court judgment. See Gregory A. Castanias and Robert H. Klonoff, Federal Appellate Practice and Procedure in a Nutshell 134 (2008) (“It is well settled that absent a cross-appeal, a party may not use his opponent's appeal as a vehicle for attacking a final judgment in an effort to diminish the appealing party's rights thereunder.” (internal quotation marks omitted)). The Supreme Court recently affirmed the cross-appeal rule, stating that “[u]nder that unwritten but longstanding rule, an appellate court may not alter a judgment to benefit a nonappealing party.” Greenlaw v. United States, 554 U.S. 237, 244–45, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008). Three justices asserted (and were not contradicted by the majority on this point) that the rule is not a jurisdictional requirement but simply a rule of appellate practice. See id. at 256–59, 128 S.Ct. 2559 (Alito, J., dissenting).

Considering the cross-appeal requirement in this light, we believe that it was not necessary for the government to file a cross-appeal from the district court's order granting an extension of time to appeal. In moving for dismissal of the appeal, the government was not seeking alteration of the judgment below in its favor. For decades we have permitted motions by appellees seeking to dismiss appeals as untimely, even when the district court has granted an extension of time that is being challenged by the motion. See Gooch v. Skelly Oil Co., 493 F.2d 366, 367–68 (10th Cir.1974). One might distinguish our prior practice on the ground that we were treating the timeliness of an appeal as a jurisdictional matter—one that we had an obligation to address regardless of how, or even whether, it had been presented to the court by a party. See City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1045 n. 8 (10th Cir.1994). But recently we held that even though the timeliness of a criminal appeal is not a jurisdictional matter, we can sua sponte dismiss such an appeal as untimely. See United States v. Mitchell, 518 F.3d 740, 750–51 (10th Cir.2008) (considering whether to dismiss appeal on ground that district court improperly granted motion to extend time for appeal). If we can do so sua sponte, surely the failure to cross-appeal does not automatically bar our consideration of a motion to dismiss.

Moreover, this circuit's local rules permit a party to file “a motion to dismiss the entire case for lack of appellate jurisdiction or for any other reason a dismissal is permitted by statute, the Federal Rules of Appellate Procedure or these rules.” 10th Cir. R. 27–2(A)(1)(a) (emphasis added). Timeliness of a criminal appeal, although not a matter of jurisdiction, is such a reason for dismissal. Indeed, when a challenge to the timeliness of a criminal appeal is properly presented by the appellee, we must enforce the time bar. See Mitchell, 518 F.3d at 744.

Accordingly, we hold that the timeliness of Mr. Madrid's appeal was properly brought before this court by the government's motion.

B. Forfeiture

Mr. Madrid raises a second procedural concern. He contends that the government forfeited its right to object to the extension because it did not raise the objection below. Although his motion requesting an extension noted that the government opposed the request, we agree that the government needed to do more to present its objection to the district court. Nevertheless, “[i]f a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party.” Fed.R.Crim.P. 51(b). In this case Mr. Madrid filed his motion for an extension on October 29, 2009, and the district court granted the motion five days later on November 3. Yet the Local Rules of Criminal Procedure for the United States District Court for the District of New Mexico allow a party 14 days to respond to a motion. See D.N.M.LR–Cr. 47.8 (March 1, 2009). The government cannot be faulted for failing to object when the local rule gave it nine more days to respond.

Mr. Madrid further contends, however, that even if the government had a valid excuse for not objecting before the district court ruled on November...