United States v. Ramirez

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
May 4, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-60852
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OTTO MELVIN RAMIREZ, also known as Otto Malvin Ramirez, also
known as Sammy Ortiz,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:03-CR-97-ALL
--------------------
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Otto Melvin Ramirez appeals a judgment revoking the term of
supervised release imposed following his conviction for illegal
reentry of an alien after conviction of a felony.
The Government has filed a motion to dismiss the appeal for
lack of jurisdiction. The Government argues that this court
lacks jurisdiction because Ramirez failed to file a timely notice
of appeal as required by FED. R. APP. P. 4(b). Both parties have
miscalculated the relevant dates in their arguments before this

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No. 03-60852
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court. Ramirez’ motion for an extension of time to appeal the
district court’s judgment was filed within the ten-day appeal
period set forth in FED. R. APP. P. 4(b), which is calculated from
the entry date of the judgment and excludes intervening weekends
and the Labor Day Holiday. FED. R. APP. P. 4(b)(1)(A)(ii); FED.
R. APP. P. 26(a). Additionally, Ramirez’ notice of appeal was
filed within the 30-day period permitted by FED. R. APP. P.
4(b)(4).
A finding of excusable neglect or good cause is implicit in
the district court’s order granting Ramirez’ motion. Considering
the circumstances, the district court did not abuse its
discretion when it implicitly determined that excusable neglect
or good cause existed in this case. See Pioneer Inv. Services
Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395
(1993); United States v. Clark, 193 F.3d 845, 846 (5th Cir.
1999). The Government’s motion is therefore DENIED.
Ramirez argues that the judgment revoking his term of
supervised release should be reversed because the district court
that revoked his supervised release did not have jurisdiction
over his supervised release. The term of supervised release was
imposed following a conviction entered in the federal district
court for the Middle District of Tennessee. Ramirez was
subsequently arrested in the Southern District of Mississippi.
Pursuant to 18 U.S.C. § 3605, the Middle District of Tennessee
transferred jurisdiction of Ramirez to the Southern District of

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No. 03-60852
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Mississippi. Ramirez argues that since he was under arrest and
then incarcerated in the Southern District of Mississippi he was
not on supervised release and therefore 18 U.S.C. § 3605, which
provides for the transfer of jurisdiction over a probationer or
person on supervised release, was inapplicable to him. Ramirez
was on supervised release when he reentered the United States.
His subsequent arrest did nothing to change his status as a
person on supervised release. Therefore, the Southern District
of Mississippi had jurisdiction over Ramirez’ supervised release.
MOTION DENIED; JUDGMENT AFFIRMED.

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