United States v. Phu Tan Luong

MEMORANDUM **

We have jurisdiction to consider the government’s notice of appeal in Case No. 07-50161 because the matter being appealed was civil in nature, and therefore the time for filing an appeal under Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure applied. Although the plain language of Rule 4 directs us to consider only whether the “judgment or order appealed from” is entered in a “civil case” or “criminal case,” our precedents dictate that we must engage in a more searching analysis. We have rejected the “conclusory rationale” that merely because a motion is made in a criminal case, the appeal must be governed by the rule for criminal cases, Rule 4(b)(1)(B) of the Federal Rules of Appellate Procedure. United States v. Braunstein, 281 F.3d 982, 993 (9th Cir.2002) (internal quotation marks omitted). Instead, we have held that where “the order appealed from is civil in nature, the civil notice of appeal provision set out in Rule 4(a) will apply, even if the order arises from a criminal proceeding.” United States v. Ono, 72 F.3d 101, 102 (9th Cir.1995); see also United States v. Plechner, 577 F.2d 596, 598 (9th Cir.1978) (holding that a motion by the government…