United States v. 2005-05-25 | 02-50289 | USA VAREVALO | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 02-50289
Plaintiff-Appellee, D.C. No.
v. CR-99-00083-DOC-  06MARCEL AREVALO, aka Psycho,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted March 9, 2005*
Pasadena, California
Filed May 26, 2005
Before: Melvin Brunetti, Barry G. Silverman, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
5773

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COUNSEL
Jerry Sies, Los Angeles, California, for the defendant-
appellant.
Robert E. Dugdale, Assistant United States Attorney, Terror-
ism and Organized Crime Section, Los Angeles, California,
for the plaintiff-appellee.
OPINION
TALLMAN, Circuit Judge:
Marcel Arevalo again attempts to appeal his sentence and
conviction on two counts of conspiracy to distribute a con-
trolled substance, 21 U.S.C. § 846, and one count of RICO
conspiracy to distribute narcotics, 18 U.S.C. § 1962(d). He
voluntarily dismissed his first appeal almost seven months
before seeking to reinstate it. We dismiss for lack of jurisdic-
tion.
I
After a ninety-four day trial, a jury convicted Arevalo on
three of the seventeen charged counts, conspiracy and RICO
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conspiracy to distribute controlled substances. The jury found
Arevalo not guilty on the remaining fourteen counts: one
count of violating RICO, 18 U.S.C. § 1962(c), eight counts of
violent crimes in aid of racketeering, 18 U.S.C. § 1959(a), and
five counts of carrying and using a firearm in connection with
a crime of violence or drug trafficking, 18 U.S.C. § 924(c).
Based on Arevalo’s criminal history and jury conviction,
the Presentence Report calculated a Total Offense Level of 19
and a Criminal History Category of I, and recommended that
the district court sentence Arevalo to between thirty and
thirty-seven months of imprisonment. At the sentencing hear-
ing, however, the district court made several findings of fact,
and increased Arevalo’s Total Offense Level from 19 to 46.1
Additionally, the district court used Arevalo’s juvenile delin-
quency adjudications to increase his Criminal History Cate-
gory from I to II.
While the sentence applicable under the Sentencing Guide-
lines was life, the district court sentenced Arevalo on May 29,
2002, to 240 months — a sentence that corresponded with the
twenty year maximum available for RICO violations. 18
U.S.C. § 1963(a). Arevalo filed a timely appeal in the district
court on June 6, 2002. Fed. R. App. P. 4(b)(1)(A)(i).
On December 12, 2003, Arevalo moved to voluntarily dis-
miss his appeal, stating in his supporting papers that:
I, . . . having been advised of my right to appeal from
the judgment of conviction and sentence . . . and
having discussed the matter with my attorney, do not
1Specifically, the district court found beyond a reasonable doubt that
Arevalo had been involved in the murders of Richard Serrano, Jose Martin
Gutierrez, and Enrique Delgadillo, the conspiracy to murder Jesse Detevis,
extortion, and drug distribution. The district court also found by a prepon-
derance of the evidence that Arevalo conspired to distribute one-quarter
kilogram of cocaine base.
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desire to pursue my appeal of the said conviction and
sentence and hereby waive any right to appeal.
We granted his motion and dismissed his appeal on January
9, 2004. See Fed. R. App. P. 42(b) (“The circuit clerk may
dismiss a docketed appeal if the parties file a signed dismissal
agreement[.]”).
Almost seven months later, on August 2, 2004, Arevalo
moved to reinstate his appeal. Arevalo argued that in the wake
of the Supreme Court’s decision in Blakely v. Washington,
124 S. Ct. 2531 (2004), and our decision in United States v.
Ameline, 376 F.3d 967 (9th Cir. 2004), amended by 400 F.3d
646 (9th Cir.), vacated pending en banc review by 401 F.3d
1007 (9th Cir. 2005), Arevalo had “a viable legal basis for
challenging his sentence.” The Appellate Commissioner
granted his motion on August 3, 2004.
On August 11, 2004, the Government filed a motion for
reconsideration of the August 3, 2004, order reinstating
Arevalo’s appeal. A motions panel subsequently denied the
Government’s motion to reconsider reinstatement on August
16, 2004, and the Clerk of the Court assigned this panel to
consider the merits of Arevalo’s reinstated appeal.
Arevalo presents three claims of error on appeal: (1) that
the district court unconstitutionally enhanced his sentence
based on facts not found by a jury beyond a reasonable doubt
in violation of the Sixth Amendment, see United States v.
Booker, 125 S. Ct. 738 (2005); (2) that the district court
unconstitutionally increased his Criminal History Category
based on a term he served in prison for a juvenile delinquency
adjudication made without a jury in violation of the Sixth
Amendment and his right to equal protection; and (3) that the
district court erred in refusing to suppress wiretap evidence.
We dismiss Arevalo’s appeal for lack of jurisdiction
because he cannot show why the time limitation which pre-
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vents an appellate court from exercising jurisdiction over his
untimely reinstated appeal can be avoided.
II
[1] Under the Federal Rules of Appellate Procedure 4(b),
a defendant must file his or her appeal “within 10 days . . .
[of] either the judgment or the order being appealed[.]” Fed.
R. App. P. 4(b). The time limits on filing a notice of appeal
are “mandatory and jurisdictional.” United States v. Houser,
804 F.2d 565, 568 (9th Cir. 1986). Consequently, failure to
file a timely or effective notice of appeal renders us without
jurisdiction to consider the merits of the petitioner’s claims.
See id. The procedural history of Arevalo’s appeal is best ana-
lyzed by breaking it down into two steps: his voluntary dis-
missal of a timely filed appeal and his attempt to reinstate the
same.
A
[2] We first consider the effect of an appeal, timely filed,
but voluntarily dismissed. In these cases we believe that the
approach taken by the Fifth, Sixth, and Seventh Circuits is
most consistent with the purpose of the appellate rules. They
have ruled that once an appeal is voluntarily dismissed, appel-
late courts no longer have jurisdiction over the merits of the
appeal.
[3] As the Seventh Circuit explained:
A notice of appeal filed and dismissed voluntarily is
gone, no more effective in conferring jurisdiction on
a court than a notice never filed. Attempts to resur-
rect notices of appeal must be treated the same as
belated notices of appeal. The time limits for filing
an appeal require the losing party to choose between
accepting the judgment and pursuing appellate
review. The loser may not dither. Filing and dismiss-
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ing an appeal prevents appellate review, and we do
not think that it should place the judgment in limbo
— open to review whenever the losing side changes
its mind. The structure of the rules is set against such
delay and uncertainty.
Barrow v. Falck, 977 F.2d 1100, 1103 (7th Cir. 1992) (cita-
tion omitted); Futernick v. Sumpter Township, 207 F.3d 305,
312 (6th Cir. 2000) (same) (quoting Barrow with approval);
Williams v. United States, 553 F.2d 420, 422 (5th Cir. 1977)
(voluntarily dismissing a timely filed appeal “place[s] [the
appellant] in the same position as if [he or she] had never filed
a notice of appeal in the first place”); see also United States
v. Outen, 286 F.3d 622, 631 (2d Cir. 2002) (“A withdrawal of
an appeal is an expression of intent of the parties [ ] not to
pursue the appeal any further and brings the appeal to an
end.”); id. at 632 n.5 (quoting Barrow with approval). There-
fore, we were deprived of our jurisdiction to review the merits
of Arevalo’s appeal once we granted his motion to dismiss.
B
[4] Arevalo, however, did not simply obtain an order dis-
missing his case, but later sought to revive his extinguished
appeal by filing a motion to reinstate almost seven months
after dismissal. Accordingly, at step two, we must consider
whether, and in what circumstances, a voluntarily dismissed
appeal may be reinstated because we are without jurisdiction
absent proper reinstatement. See supra at 5-6; see also, e.g.,
Futernick, 207 F.3d at 311.2
2We note that a motions panel denied the Government’s motion to
reconsider the Appellate Commissioner’s reinstatement of Arevalo’s
appeal, effectively concluding that we had jurisdiction over the appeal.
Arevalo argues that under the “law of the case” doctrine this panel — the
merits panel — is precluded from revisiting the reinstatement of his appeal
because the motions panel denied the Government’s motion to reconsider.
Although “the ‘law of the case’ doctrine prevents reconsideration of issues
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[5] We adopt the Seventh Circuit’s solution as most consis-
tent with the spirit of the appellate rules: “A motion to rein-
state should be treated as a fresh notice of appeal, effective if
time remains under Rule 4 and ineffective otherwise.” Bar-
row, 977 F.2d at 1103; see also Williams v. United States, 553
F.2d at 422 (refusing to consider another appeal where, after
voluntary dismissal, appellant’s second notice of appeal was
filed outside the time limit set by the appellate rules). Permit-
ting appellants unlimited opportunities to reinstate a voluntar-
ily withdrawn appeal compromises the finality of judgments
and allows appellants to circumvent express statutory time
limits for appeal. Futernick, 207 F.3d at 311 (“If appellants
were permitted to dismiss voluntarily a timely appeal and then
reopen the appeal at their pleasure . . . [a]ppellants would
essentially have the ability to make an end run around Federal
Rule of Appellate Procedure 4[ ].”); Barrow, 977 F.2d at 1103
(“The structure of the rules is set against [ ] delay and uncer-
tainty.”).
[6] Thus, an appellant who has voluntarily dismissed his
appeal must move to reinstate within the time limits for filing
a notice of appeal, see, e.g., Barrow, 977 F.2d at 1103, or seek
an extension of time from the district court to re-file the
notice of appeal. Fed. R. App. P. 4(b)(4) (“Upon a finding of
excusable neglect or good cause, the district court may . . .
that have been decided by the court, the merits panel has an independent
duty to examine jurisdictional questions.” Hard v. Burlington N. R.R. Co.,
870 F.2d 1454, 1458 (9th Cir. 1989); see also Sanchez v. City of Santa
Ana, 936 F.2d 1027, 1032 n.3 (9th Cir. 1991) (“While this court gives def-
erence to motions panel decisions made in the course of the same appeal,
we have an independent duty to decide whether we have jurisdiction.”);
Houser, 804 F.2d at 569 (“Stated succinctly, the doctrine of ‘law of the
case’ is inapplicable to the question of our jurisdiction to consider an
appeal.”). Thus, because the time limits for filing a notice of appeal are
jurisdictional, a merits panel should reconsider jurisdictional issues even
if previously decided by a motions panel. Hard, 970 F.2d at 1458; Houser,
804 F.2d at 568.
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extend the time to file a notice of appeal for a period not to
exceed 30 days from the expiration of the time otherwise pre-
scribed by this Rule 4(b).”). Consequently, appellants must
seek reinstatement of their voluntarily dismissed appeals
within either the remainder of the ten-day period within which
a criminal appellant must file the notice of appeal, Fed. R.
App. P. 4(b)(1)(A), or within the remainder of the ten-day
period plus thirty days if appellant obtains a timely extension
from the district court. Fed. R. App. P. 4(b)(4). We recognize
that this gives appellants only a small window within which
to reinstate their appeal, but the strict result is compelled by
the purposes of achieving finality and the text of the appellate
rules. Barrow, 977 F.2d at 1103; see generally, Fed. R. App.
P. 4(b).
[7] We have no jurisdiction over Arevalo’s appeal because
he moved to reinstate his appeal seven months after his volun-
tary dismissal and well beyond the thirty-day extension period
he might have sought from the district court to file, or in his
case re-file, a notice of appeal. Instead, in moving to reinstate
his appeal, Arevalo argues only that the Supreme Court deci-
sion in Blakely and our decision in Ameline, provided him
with a viable legal basis for now challenging his sentence.
Arevalo’s argument in his motion to reinstate, however, hides
the true nature of his claims on appeal by insinuating that
prior to Blakely and Ameline he had no claims upon which he
could appeal his sentence and conviction. That is simply not
true.
[8] Arevalo argued at the sentencing hearing that under the
Supreme Court’s decision in Apprendi v. New Jersey, 530
U.S. 466 (2000) — the principle basis for the Supreme
Court’s decision in Blakely — enhancing his sentence based
on facts not found by a jury beyond a reasonable doubt
unconstitutionally deprived him of his Sixth Amendment right
to trial by jury. That the district court rejected Arevalo’s claim
did not foreclose reconsideration of the merits of his argument
on appeal. Indeed, the entire purpose of appellate review is to
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provide aggrieved parties with an opportunity to present their
claims to a higher tribunal in an attempt to persuade it that the
lower court made an erroneous conclusion of law. Nothing,
save his own decision to dismiss, precluded Arevalo from
pressing his Apprendi claim on appeal and seeking to have the
district court’s determination reversed.
[9] Moreover, notwithstanding his Apprendi claim, we
reject Arevalo’s suggestion that he had no viable claims on
appeal prior to the decisions in Blakely and Ameline. To the
contrary, Arevalo specifically argues on appeal that the dis-
trict court erred in denying his joint motion to suppress evi-
dence obtained from wiretap interceptions — a claim of error
on appeal that is completely unaffected by those two deci-
sions. Nothing in either Blakely or Ameline made this claim
suddenly viable. Had Arevalo wanted to pursue this claim on
appeal, he was well aware of it then and completely free to do
so. He cannot now reinstate his appeal on that claim where he
previously voluntarily dismissed it.
Our decision today is consistent with our prior holding in
Williams v. Boeing, 681 F.2d 615, 616 (9th Cir. 1982), where,
in a terse per curiam opinion, we granted an appellant’s
motion to reinstate a voluntarily dismissed appeal because
under a prior similar version of Rule 4(a) we thought that the
appellant ought not to be denied an opportunity for appellate
review on account of the “lack of understanding of appellate
procedure demonstrated by appellant’s counsel” and his coun-
sel’s “apparent lack of attention to the specific language of the
order [appealed from].” Id. (reinstating appeal because there
was “no reason to let counsel’s failings in [the] case work to
his client’s detriment”).
This case is different. Arevalo makes no allegations, much
less provides any proof, that he was misled or that his counsel
was negligent. The only thing that prevented Arevalo from
pursuing his appeal was Arevalo himself. Arevalo could have
pursued his Apprendi claim, his appeal of the district court’s
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order refusing to suppress the wiretap evidence, or both.
Arevalo lost his opportunity for appellate review by voluntar-
ily dismissing his appeal and failing to reinstate within the
time limits proscribed by the Federal Rules of Appellate Pro-
cedure, not because of his attorney’s mistakes.
We note two curiosities regarding reinstating an appeal.
First, the current version of Rule 4(b) says nothing about the
appellate court’s power to reinstate a dismissed criminal
appeal. Fed. R. App. P. 4(b). Second, we also note that Rule
26(b) precludes appellate courts from granting appellants an
extension for filing a notice of appeal except as permitted by
Rule 4. Fed. R. App. P. 26(b) (“the [appellate] court may not
extend the time to file: (1) a notice of appeal (except as autho-
rized in Rule 4) or a petition for permission to appeal”). Rule
4, however, contains no explicit language granting authority
to an appellate court to extend the time to file a notice of
appeal. Fed. R. App. P. 4(b)(4) (“Upon a finding of excusable
neglect or good cause, the district court may . . . extend the
time to file a notice of appeal for a period not to exceed 30
days[.]”) (emphasis added). Moreover, although an appellate
court may generally “suspend any provision of these rules[,]”
explicitly excepted is an appellate court’s power to extend
time to file a notice of appeal. Fed. R. App. P. 2 (incorporat-
ing Rule 26(b)’s limitations). This exception is reasonable
because the timeliness of filing a notice of appeal is jurisdic-
tional and goes to the very power of an appellate court to
review alleged errors below.
[10] We express no opinion on an appellate court’s power
to reinstate an appeal or whether Rule 4’s silence precludes an
appellate court from granting an extension or merely circum-
scribes its power to be consistent with the district court’s
authority to grant an extension for good cause or excusable
neglect. See Boeing, 681 F.2d at 616. Instead, we hold today
that under Boeing, Arevalo has failed to make the requisite
showing to have his appeal reinstated by demonstrating
excusable neglect.
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[11] Similarly, under Rule 4(b)(4), assuming arguendo that
it permits an appellate court, as opposed to the district court,
to grant an extension of time based on a finding of excusable
neglect or good cause, Arevalo has made no such allegations,
and certainly no showing, of either. To the extent that Arevalo
implies that there is good cause to reinstate his appeal because
his sentencing claims became viable only after Blakely and
Ameline were announced, we have already rejected that argu-
ment. See supra at 9-11. Arevalo had sufficient basis to file
and pursue his appeal prior to Blakely and Ameline. He simply
chose not to, and cannot now reinstate his appeal.
[12] We conclude that an appeal timely filed, but voluntar-
ily dismissed, leaves us without jurisdiction to consider the
merits where appellant has missed the procedural window for
reinstatement by failing to re-file his notice of appeal before
the prescribed time elapses or by failing to properly obtain a
thirty-day extension for re-filing from the district court, and
where appellant makes no showing of excusable neglect.
DISMISSED.
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