United States v. Johnson , 568 F. App'x 650 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
June 26, 2014
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 13-2206
(D.C. No. 1:06-CR-01024-WJ-1)
ADONEUS JOHNSON, (D. N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, ANDERSON and BRORBY, Senior Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,
submitted without oral argument.
The defendant, Adoneus Johnson, has appealed the district court’s denial of his
motion to reduce his sentence pursuant to 18 U.S.C. § 3582. Included in the
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
government’s appellate arguments is an assertion that the appeal should be dismissed as
untimely. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and
dismiss the appeal.
I. BACKGROUND
In September of 2008, Johnson entered into a plea agreement with the government,
which, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), stated he would
receive a sentence of thirteen years. The district court accepted the agreement and
sentenced Johnson to thirteen years, which equates to 156 months. On February 4, 2013,
Johnson filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). The
district court issued an order denying Johnson’s motion on June 14, 2013. Johnson filed a
motion for reconsideration on September 20, 2013. The government objected to the
motion, but did not argue the motion was untimely. The district court denied Johnson’s
motion for reconsideration on November 14, 2013. Eight days later, Johnson filed his
notice of appeal.
II. ANALYSIS
In this appeal, Johnson objects only to the district court’s denial of his initial
motion to reduce his sentence; he does not contest the district court’s denial of his motion
for reconsideration. In its response brief, the government argues that we should dismiss
this appeal as untimely because Johnson did not file his notice of appeal within fourteen
days of “the entry of either the judgment or the order being appealed.” Fed. R. App. P.
4(b)(1)(i). Although timely motions for reconsideration extend the time for filing a notice
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of appeal, Johnson did not file his motion for reconsideration within the time required by
United States v. Randall, 666 F.3d 1238, 1243 (10th Cir. 2011). The government thus
contends that this untimely motion for reconsideration did not extend the time for
Johnson to appeal his initial motion. Johnson acknowledges that his motion for
reconsideration was untimely, but he opposes dismissal of this appeal because Federal
Rule of Appellate Procedure 4(b) is not jurisdictional, but instead is a claim-processing
rule that can be waived. Johnson argues the government waived its objection to the
timeliness of this appeal by failing to raise the timeliness of Johnson’s motion for
reconsideration before the district court.
We reject Johnson’s argument that failing to object to the timeliness of a motion
for reconsideration before the district court bars the government from raising an otherwise
proper timeliness objection to the notice of appeal. Although Rule 4(b) is not
jurisdictional, we have previously held that it “must be enforced by this court when
properly invoked by the government.” United States v. Mitchell, 518 F.3d 740, 744 (10th
Cir. 2008). The question presented here is when the government must raise the issue for
it to be “properly invoked.” In Mitchell, we declined to enforce Rule 4(b) because “the
government never objected to the untimeliness of Mitchell’s notice of appeal and, as a
result, forfeited its opportunity to ensure enforcement of the rule.” 518 F.3d at 744.
Here, however, the government has objected to the untimeliness of Johnson’s notice of
appeal by raising the issue in its response brief. We conclude that is sufficient for the
government to properly invoke Rule 4(b).
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We DISMISS the appeal as untimely.
Entered for the Court
Mary Beck Briscoe
Chief Judge
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