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| Appellate Jurisdiction |
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United States v. Vera-Flores,
No. 06-1128 (10th Cir., August 7, 2007) (Published): Appellate Jurisdiction: Vera-Flores pleaded guilty to one count of Possession of a Firearm by an Illegal Alien and was sentenced to twelve months and one day, along with three years of supervised release. During the pendency of the appeal, Vera-Flores served the time and was deported back to Mexico. The panel held that this rendered the appeal moot. DISMISSED for lack of jurisdiction. NOTE: The panel distinguished between a case such as this one, where the defendant is deported to another country (and does not have his liberty impacted by the reporting requirements of supervised release) and the case of a defendant who completes the prison time during appeal and is on supervised release but still obligated to report.
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United States v. Mancera-Perez,
No. 06-2059 (10th Cir., October 1, 2007) (Published): 1. Appellate Jurisdiction; 2. Invited Error: In this illegal re-entry case, any challenge to the reasonableness of the sentence is waived because any error was invited. Mancer-Perez did not simply fail to object to the reasonableness of his sentence, he affirmatively acquiesced to it in open court. NOTE: the district court judgment was filed on January 19, 2006, but it was not entered on the court's docket until February 21, 2006 (for reasons not apparent from the record). For purposes of Fed. R. App. P. 4(b) filing deadlines for the notice of appeal, the date the order is entered on the docket controls.
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United States v. Garduno,
No. 06-2317 (10th Cir., November 6, 2007) (Publish): Appellate Jurisdiction; Guilty Pleas: Garduno plead guilty to Involuntary Manslaughter and Assault Resulting in Serious Bodily Injury for her role in a fatal car accident. After sentencing, she filed a motion to withdraw her plea. The District Court denied the motion as barred by Rule 11 because it was filed after she was sentenced in open court. AFFIRMED. Also, Garduno tried to appeal her sentence, but filed the notice late and the Government objected. The panel held that Fed. R. App. P. 4(b)(1)(A) and 4(b)(4) are non-jurisdictional claim processing rules; and, since the Government objected, the appeal is dismissed.
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United States v. Pethick,
No. 06-1525 (10th Cir., January 17, 2008) (Published): Appellate Jurisdiction: This is a rare appeal from a misdemeanor DUI conviction in federal court (it occurred on a military base). Pethick was tried by jury and sentenced to 15 days in the clink w/incidentals. However, this appeal does not address any aspect of DUI law; rather, it deals with a quirky issue of appellate jurisdiction. In this case, the District Court made key pre-trial decisions in the case and presided over the trial. However, the judge became ill and could not finish the trial, so a magistrate stepped in. At the end of the trial, the magistrate presided over the sentencing but Pethick wanted to appeal only the pre-trial orders made by the Article III judge. The question was whether the appeal should be to the District Court (which has jurisdiction over the decisions of magistrates) or to the Circuit (which has jurisdiction over the decisions of the District Court). HELD: Jurisdictional statutes are strictly construed and thus this is an appeal of a magistrate's decision which should be reviewed by the District Court.
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United States v. Mitchell
No. 05-2052 (10th Cir., February 29, 2008) (Published): 1. Filing Deadlines; 2. Appellate Jurisdiction: In this federal criminal case, Mitchell's lawyer filed the notice of appeal one day late. He filed a motion for an extension of time to file the notice of appeal due to excusable neglect (which was itself filed out of time) which was granted by the District Court. The Government never raised the issue of appellate jurisdiction. However, at oral argument, the circuit raised the jurisdictional issue sua sponte and dismissed the appeal. The case came back to the circuit from a remand by the Supreme Court in light of Bowles, which held that court-issued (as opposed to statute-based) federal procedural rules are not jurisdictional, but rather are inflexible claim-processing rules. Since FRAP 4(b) is such a claim-processing rule, the circuit had to decide whether it could sua sponte dismiss when the Government did not object. HELD: The panel may raise a time bar sua sponte. However, such power is "limited and should not be invoked when judicial resources and administration are not implicated and the delay has not been inordinate." In this case, a one-day delay did not satisfy this test, thus the panel proceeded to the merits which, unfortunately for Mitchell, ended up in a rejection of his suppression motion. Judge Lucero filed a DISSENT in which he agreed that the panel had the power to consider sua sponte an untimely filed notice of appeal even when the issue has been forfeited by a party, but he would apply well-established standards of "good cause" and "excusable neglect" neither of which were, in his view, satisfied in this case by counsel's "garden-variety mea culpa."
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United States v. Quaintance, et al.,
No. 07-2137 (10th Cir., April 15, 2008) (Published): Appellate Jurisdiction; Interlocutory Appeals: Several defendants were charged with a drug conspiracy. They defended on the grounds that they were members of the Church of Cognizance and sincerely believe cannabis is a deity and sacrament essential to the practice of their religion. The defendants moved to dismiss the indictment under the Religious Freedom Restoration Act (RFRA). The motion was denied. In this appeal, the issue is whether the defendants have a right to an interlocutory appellate decision on their defense. HELD: They do not since they have asserted only a First Amendment defense to the charges rather than a right not to be tried in the first instance. Thus, the defendants are going to have to go to trial first and then may appeal later.
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Greenlaw v. United States,
No. 07-330 (U.S., June 23, 2008): Appellate Jurisdiction: This case examines the nature of plain error review. During the sentencing of Greenlaw on multiple drug counts, the District Court erred which resulted in the imposition of a sentence lower than was mandated (the court imposed a 10 year sentence on a count that carried a mandatory 25 years minimum). Greenlaw appealed, but the Government did not. The Eighth Circuit denied all of Greenlaw's claims, but also noticed the sentencing error that was not raised by any party. The panel considered the claim sua sponte under "plain error" review and directed the District Court to "enlarge Greenlaw's sentence by 15 years." HELD: "Absent a Government appeal or cross-appeal, the Eighth Circuit could not, on its own initiative, order an increase in Greenlaw's sentence."
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