United States v. Eluterio Mauro Leijano-Cruz, Also Known as Joel Lujano-Cruz

Eluterio Leijano-Cruz was sentenced for illegal reentry but did not file a notice of appeal or motion to extend the time to file a notice of appeal within the time set forth in Federal Rule of Appellate Procedure 4(b). The district court sua sponte invoked rule 4(b)’s time limit and denied Leijano-Cruz’s motion for extension of time to file. Leijano-Cruz appeals that denial. We affirm.

I.

Leijano-Cruz is a Mexican citizen who reentered the United States after being removed. He was first deported in February 2004; before his deportation, he had been convicted of assault. In March 2004 he was found in Texas and pleaded guilty of illegal reentry under 8 U.S.C. § 1326. A judgment of sentence was entered on October 21, 2004.

The 10-day period for filing notice of appeal under rule 4(b)(1) expired on November 4. 1 The 30-day period for extending the time to file notice of appeal under rule 4(b)(4) ended on December 6 (30 days after the 10 days provided in rule 4(b)(1)(A)). 2

On December 7 the Federal Public Defender filed a notice of appeal on Leijano-Cruz’s behalf, and on December 10 he filed *573 a motion to extend the time to file a notice of appeal pursuant to rule 4(b)(4), urging the district court to find that the late notice of appeal resulted from excusable neglect. The government, though served, did not respond to the motion.

The court denied the motion to extend, finding that the date the motion was filed was “beyond whatever statutory power the Court may possess to extend Defendant’s deadline to file a notice of appeal.” The court added that “no showing has been made of good cause or excusable neglect that would allow this Court to extend the deadline if it could.” Leijano-Cruz appeals the denial, arguing that rule 4(b) is a non-jurisdictional claim-processing rule that the government forfeited by failing to object to his motion for extension.

II.

This court has traditionally held that rule 4(b) is jurisdictional and thus cannot be forfeited or waived, so we cannot hear an appeal if a party fails to comply with its timing requirements. 3 The decision in Eberhart v. United States, 546 U.S. 12,126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per cu-riam), however, casts doubt on our traditional view.

In Eberhart the Court held that rule 33(a), which allows a district court to vacate a judgment and grant a motion for a new trial if a party complies with its strict time limitation, does not delimit subject-matter jurisdiction but is an inflexible claim-processing rule. In that case, the defendant filed a supplemental memorandum supporting his motion for a new trial six months after the deadline set out in rule 33(a). Eberhart, 126 S.Ct. at 404. The government opposed the motion on the merits, but the district court granted it. Id. The court of appeals reversed the award of a new trial, holding that the district court lacked jurisdiction to grant one, but the Supreme Court reversed, stating that the government had forfeited its right to raise the defense of untimeliness. Eberhart, 126 S.Ct. at 404, 407.

The outcome of Eberhart is less important for resolving this case than is its discussion of United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960), which involved an untimely notice of appeal under Federal Rule of Criminal Procedure 37, which is the predecessor to rule 4(b). 4 See Eberhart, 126 S.Ct. at 406. In Robinson, the defendant filed a notice of appeal eleven days after the deadline in rule 37; the government objected to the untimeliness, and the court of appeals held that the district court could extend the time to file a notice of appeal (pursuant to Federal Rule of Civil Procedure 45(b)) if the untimeliness was on account of excusable neglect. Robinson, 361 U.S. at 221-22, 80 S.Ct. 282.

The Supreme Court disagreed and reversed, citing the rule stated in circuit court cases on the issue: “[T]he filing of a notice of appeal within the 10-day period *574 prescribed by Rule 37(a)(2) is mandatory and jurisdictional.” Id. at 224, 80 S.Ct. 282. In Eberhart, 126 S.Ct. at 406, the Court explained that “Robinson is correct not because the district court lacked subject-matter jurisdiction, but because district courts must observe the clear limits of the Rules of Criminal Procedure when they are properly invoked.” The Court further explicated “the central point of the Robinson case” by stating 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 submissions 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.

Eberhart, 126 S.Ct. at 406-07.

From Eberhart's discussion of Robinson, one might conclude that rule 4(b) is nonju-risdictional, but no court of appeals has yet done so, 5 and we find it unnecessary to take that step here. This is because, even if Eberhart applies to notices of appeal in criminal cases, 6 the Supreme Court there held only that a district court’s decision to permit an untimely document to be considered could not be reversed in the absence of an objection by the government in the district court. Eberhart does not hold that a defendant, as appellant from a decision that forbade his pursuing an untimely noticed appeal, has a right to have the untimeliness disregarded.

In other words, the district court does not err, after Eberhart, if it enforces an inflexible claim processing rule, and we may not reverse its decision to do so. Irrespective of whether the government noted the untimeliness in the district court, it is the defendant’s burden on appeal to show that the court erred in enforcing the rule.

On the facts of this case, the outcome is obvious. Leijano-Cruz did not file a timely notice of appeal, and as the district court noted, he utterly failed to assert any ground for excusable neglect. The district court could correctly enforce the time limits, regardless of whether they are jurisdictional. Irrespective of which standard of review is employed, the court neither erred nor reversibly erred in its denial of the rule 4(b)(4) motion.

AFFIRMED.