United States v. Philip Martin Sadler

The question we address concerns the application of two recent Supreme Court cases, Eberhart v. United States, 546 U.S. 12 , 126 S.Ct. 403 , 163 L.Ed.2d 14 (2005) (per curiam), and Kontrick v. Ryan, 540 U.S. 443 , 124 S.Ct. 906 , 157 L.Ed.2d 867 (2004), to Federal Rule of Appellate Procedure (“FRAP”) 4(b). We have long assumed that FRAP 4 is, in general, “mandatory and jurisdictional,” and therefore not forfeitable 1 or waivable. Kontrick and *934 Eberhart , however, clarified that procedural rules formerly referred to as “mandatory and jurisdictional” may be, instead, simply “inflexible claim-processing rule[s],” mandatory if invoked by a party but forfei-table if not invoked. See Eberhart, 126 S.Ct. at 403, 407 ; Kontrick, 540 U.S. at 456 , 124 S.Ct. 906 . Looking closely at Kontrick and Eberhart to determine the proper boundary between the two varieties of procedural standards, we conclude that Rule 4(b) is not jurisdictional, but, instead, is forfeited if not invoked. Here, however, the defendant’s arguments to the contrary notwithstanding, the government properly objected to the untimeliness of the appeal. Accordingly, we dismiss.

BACKGROUND

On August 10, 2005, a jury found…

concurring separately:

I concur in the result reached by the majority. In this case, I agree that Sad-ler’s untimely notice of appeal, see Federal Rule of Appellate Procedure 4(b), should be dismissed on the government’s objection, which was first raised in its opening brief.

I add a caveat. I believe circumstances could arise in a criminal appeal in which a federal court could properly reject the government’s Rule 4(b) objection, made to the late filed appeal of a defendant.

However, such a case is not before us at this time.

480 F.3d 932 UNITED STATES of America, Plaintiff-Appellee, v. Philip Martin SADLER, Defendant-Appellant. No. 06-10234. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 7, 2006. Filed March 1, 2007. Harriette P. Levitt, Tucson, AZ, for the appellant. Celeste Corlett, Assistant United States Attorney, Tucson, AZ, for the appellee. Appeal from the United States District Court for the District of Arizona; Raner C. Collins, District Judge, Presiding. D.C. No. CR-04-01419-RCC/HCE. Before: BRIGHT, * D.W. NELSON, and BERZON, Circuit Judges. BERZON, Circuit Judge: 1 The question we address concerns the application of two recent Supreme Court cases, Eberhart v. United States, 546 U.S. 12 , 126 S.Ct. 403 , 163 L.Ed.2d 14 (2005) (per curiam), and Kontrick v. Ryan, 540 U.S. 443 , 124 S.Ct. 906 , 157 L.Ed.2d 867 (2004), to Federal Rule of Appellate Procedure ("FRAP") 4(b). We have long assumed that FRAP 4 is, in general, "mandatory and jurisdictional," and therefore not forfeitable 1 or waivable. Kontrick and Eberhart , however, clarified that procedural rules formerly referred to as "mandatory and jurisdictional" may be, instead, simply "inflexible claim-processing…