USA v. Rodolfo Ortiz

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10293
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODOLFO ORTIZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:09-cr-20710-JAL-1
____________________
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2 Opinion of the Court 22-10293
Before WILSON, ROSENBAUM , and BLACK , Circuit Judges.
PER CURIAM:
The Government seeks to dismiss this appeal as untimely.
On October 1, 2021, the district court entered an order denying
Rodolfo Ortiz’s motion for compassionate release under 18 U.S.C.
§ 3582(c)(1)(A). Ortiz filed a motion to reconsider 14 days later, on
October 15, 2021. The district court entered an order denying
Ortiz’s motion for reconsideration on December 27, 2021. Ortiz
filed his notice of appeal on January 23, 2022, after the 14-day dead-
line to file a notice of appeal. Fed. R. App. P. 4(b)(1)(A)(i) (provid-
ing in a criminal case, a defendant must file a notice of appeal
within 14 days after entry of the judgment or order being ap-
pealed). We remanded this case to the district court for the court
to determine whether Ortiz had shown excusable neglect or good
cause warranting an extension of the appeal period.
See United
States v. Ward, 696 F.2d 1315, 1317-18 (11th Cir. 1983) (explaining
in criminal cases, we have customarily treated a late notice of ap-
peal, filed after the 14-day period but within the 30 days during
which an extension is permissible, as a motion for extension of time
and remanded the case to the district court for the limited purpose
of finding of excusable neglect).
On limited remand, the district found that Ortiz did not as-
sert, argue, or establish excusable neglect or good cause warranting
an extension of the appeal period.
See Fed. R. App. P. 4(b)(4) (stat-
ing upon a finding of good cause or excusable neglect, a district
court may grant a 30-day extension of the 14-day deadline in a
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22-10293 Order of the Court 3
criminal case, either “before or after the time has expired, . . . for a
period not to exceed 30 days from the expiration of the time other-
wise prescribed”). If the government raises the issue of timeliness,
then we “must apply the time limits of Rule 4(b).”
United States v.
Lopez, 562 F.3d 1309, 1314 (11th Cir. 2009).
Ortiz’s untimely notice of appeal was filed 27 days after the
district court entered its last relevant order, and Ortiz has no good
cause or excusable neglect warranting an extension of the appeal
period. Thus, we dismiss Ortiz’s appeal as untimely.
DISMISSED.
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