United States of America v. Armando Gonzalez-Heredia, a.k.a. Gallo

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARMANDO GONZALEZ-HEREDIA,
a.k.a. Gallo,
Defendant - Appellant.
No. 12-50233
D.C. No. 3:09-cr-01684-DMS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted February 18, 2014**
Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.
Armando Gonzalez-Heredia appeals from the district court’s judgment and
challenges the 97-month sentence imposed following his guilty-plea conviction for
conspiracy to kidnap, in violation of 18 U.S.C. § 1201(a)(1) and (c);
FILED
FEB 27 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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and conspiracy to distribute marijuana and cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and 846. We have jurisdiction under 28 U.S.C. § 1291, and we
dismiss.
On May 21, 2012, Gonzalez-Heredia filed a pro se notice of appeal from the
judgment entered by the district court on March 5, 2012. Because the notice of
appeal was not timely filed, see Fed. R. App. P. 4(b), the government now urges
this court to dismiss the appeal. Under these circumstances, we must dismiss. See
United States v. Sadler, 480 F.3d 932, 942 (9th Cir. 2007) (where the government
properly raises untimeliness argument, dismissal is mandatory). Contrary to
Gonzalez-Heredia’s contention, the Appellate Commissioner order dated
September 7, 2012, did not contain a determination as to timeliness, but rather
simply discharged the order to show cause.
DISMISSED.
12-50233 2

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