United States v. Verdin-Garcia
707 F. App'x 559
| 10th Cir. | 2017Background
- In 2006 a jury convicted Fidencio Verdin-Garcia on 14 federal drug counts; he received concurrent sentences including three life terms and multiple 4-year terms. Appellate court affirmed convictions and sentences.
- Verdin-Garcia previously sought a sentence reduction under 18 U.S.C. § 3582(c)(2) in 2015; that denial was affirmed on appeal.
- In March 2017 he filed a second § 3582(c)(2) motion; the district court denied it on April 14, 2017, for lack of jurisdiction to revisit the issue.
- Verdin-Garcia asserts he did not receive the district court’s order until May 12; he delivered a combined notice of appeal and motion for leave to file an out-of-time appeal to prison officials on June 29; the district court filed it July 14 and granted leave.
- The government argued the notice of appeal was untimely under Federal Rule of Appellate Procedure 4(b); the Tenth Circuit concluded the notice was filed well after the deadline and dismissed the appeal as untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Verdin-Garcia’s appeal was timely under Fed. R. App. P. 4(b) | The appeal should be considered timely because he received the district court’s order late and gave his notice to prison officials on June 29 (prison-mailbox rule) | The notice was filed after the 14-day criminal-appeal window and any allowable 30-day extension, so it was untimely | Appeal untimely; dismissal affirmed |
| Whether the district court could grant leave to file an out-of-time appeal beyond Rule 4(b) limits | District court’s grant of leave cured timeliness | District court lacked authority to extend beyond Rule 4(b)(4)’s strict limits | District court lacked authority to extend beyond Rule 4(b)(4); its grant did not cure untimeliness |
| Whether failure to receive the district-court order (or clerk’s failure to notify) extends or tolls the appeal period | Late receipt of the order excuses the late filing | Rule 49(c) and Rule 4(b) do not permit tolling for clerk’s failure to notify; receipt delay does not extend the appeal period | Lack of receipt does not excuse untimely appeal; Rule 49(c) does not alter Rule 4(b) deadlines |
Key Cases Cited
- United States v. Verdin-Garcia, 516 F.3d 884 (10th Cir.) (affirming convictions and sentences)
- United States v. Verdin-Garcia, 824 F.3d 1218 (10th Cir.) (addressing prior § 3582(c)(2) reduction attempt)
- United States v. Randall, 666 F.3d 1238 (10th Cir.) (appeal from § 3582(c)(2) motion governed by criminal appeal rules)
- United States v. Mitchell, 518 F.3d 740 (10th Cir.) (Rule 4(b) is a mandatory claim-processing rule enforceable when invoked)
- United States v. Garduno, 506 F.3d 1287 (10th Cir.) (government may raise late-notice objection in briefing)
- United States v. Little, 392 F.3d 671 (4th Cir.) (clerk’s failure to give notice does not excuse untimely criminal appeal under Rule 49(c))