United States v. Victor Mendoza , 372 F. App'x 513 ( 2010 )

Case: 09-50251 Document: 00511069879 Page: 1 Date Filed: 04/05/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 5, 2010
No. 09-50251
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
VICTOR MANUEL MENDOZA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
(08-CR-754)
Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
Victor Manuel Mendoza appeals the denial of his motion to correct
sentence pursuant to F ED. R. C RIM. P. 35(a). This court must examine the basis
of its jurisdiction sua sponte if necessary. Mosley v. Cozby, 813 F.2d 659, 660
(5th Cir. 1987). The notice of appeal in a criminal case must be filed within 14
days after the entry of the judgment or order being appealed. F ED. R. A PP.
P. 4(b)(1)(A). Upon a finding of good cause or excusable neglect, the district
court may extend that time “for a period not to exceed 30 days from the
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-50251 Document: 00511069879 Page: 2 Date Filed: 04/05/2010
No. 09-50251
expiration of the time otherwise prescribed by this Rule 4(b).” F ED. R. A PP.
P. (b)(4). The Government has not waived the issue whether Mendoza timely
filed his notice of appeal. See United States v. Martinez, 496 F.3d 387, 388-89
(5th Cir. 2007). Mendoza did not notice his appeal within 14 days after entry of
the order denying his Rule 35(a) motion. Consequently, he filed a motion for
extension of time in which to file his notice of appeal. The district court denied
the motion for extension of time as moot, having determined that Mendoza’s
notice of appeal was timely pursuant to the provision governing appeals from
civil cases where the United States is a party, F ED. R. A PP. P. 4(a)(1)(B).
However, a ruling on a Rule 35 motion is considered part of the original criminal
proceeding. See United States v. De Los Reyes, 842 F.2d 755, 757 (5th Cir. 1988).
Accordingly, an appeal from a ruling on such a motion must be taken within the
time delay set forth in F ED. R. A PP. P. 4(b). Id. The district court thus erred
when it determined that Mendoza’s notice of appeal was timely. See id.Accordingly, IT IS ORDERED THAT the district court’s order denying as moot
the motion for extension of time is vacated and the case is remanded to the
district court for the limited purpose of determining whether Mendoza is entitled
to an extension of time in which to file his notice of appeal based upon excusable
neglect or good cause.
ORDER VACATED; LIMITED REMAND.
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