United States v. Mc Neal

MEMORANDUM **

Anthony Charles Me Neal appeals his 106-month sentence that was imposed at re-sentencing following a remand from this court and predicated on his guilty plea conviction for bank robbery, in violation of 18 U.S.C. § 2113 (a), and 2, and possession or use of a fire arm while committing a crime of violence, in violation of 18 U.S.C. § 924 (c) and 2. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

The government argues that this Court should not reach the merits of this appeal because Me Neal’s notice of appeal (“NOA”) is untimely and because Me Neal waived the issue by failing to raise it in his earlier appeal. The government is mistaken on both grounds. See Smith v. Barry, 502 U.S. 244, 248-49 , 112 S.Ct. 678 , 116 L.Ed.2d 678 (1992); Andrade v. Attorney General of the State of California, 270 F.3d 743, 753 (9th Cir.2001) (holding that a court may construe a motion to extend time as an NOA if it meets the notice requirements in Federal Rules of Appellate Procedure, Rule 3), rev’d on other grounds, 538 U.S. 63 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003); United States v. Caperell, 938 F.2d 975, 977 (9th Cir.1991) (stating “[ajlthough a guilty plea…