United States of America v. Peter Boulette

Atlanta, GA- Criminal defense lawyer represented defendant with filing a motion for compassionate release

On October 21, 2020, the district court entered an order

denying Peter Boulette's motion for compassionate release under

18 U.S.C. § 3582(c)(1)(A). Under criminal timeliness rules, Boulette had 14 days to file a notice of appeal, i.e., until November 4,

2020. See Fed. R. App. P. 4(b)(1); see also United States v. Fair,

326 F.3d 1317, 1318 (11th Cir. 2003) (explaining that a motion under 18 U.S.C. § 3582(c)(2) is criminal in nature). The deadline in

Rule 4(b) for a defendant to file a notice of appeal in a criminal

case is not jurisdictional. United States v. Lopez, 562 F.3d 1309,

1313 (11th Cir. 2009). Instead, the filing deadline is considered a

claims-processing rule, and the government can waive an objection to an untimely notice of appeal. Id. at 1312–13. Nevertheless, if the government raises the issue of timeliness, then we

"must apply the time limits of Rule 4(b).” Id. at 1313–14.

In its brief, the government argues that this appeal should

be dismissed as untimely. Indeed, Boulette's signed notice of appeal is dated December 2, 2020. Absent evidence that Boulette

provided his notice of appeal to prison authorities for mailing at

an earlier date, the notice of appeal is deemed filed on December

2 and is, therefore, untimely. See Fed. R. App. P. 4(c)(1)(A); Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014). However, in criminal cases, we have customarily treated a late notice

USCA11 Case: 20-14796 Date Filed: 11/16/2021 Page: 2 of 3

20-14018 Opinion of the Court 3

of appeal that is filed within the 30 days during which an extension is permissible as a motion for an extension of time and remanded to the district court for a finding of good cause or excusable neglect. See Fed. R. App. P. 4(b)(4); United States v. Ward,

696 F.2d 1315, 1317-18 (11th Cir. 1983); United States v. Rothseiden, 680 F.2d 96, 98 (11th Cir. 1982).

Because Boulette’s notice of appeal was filed after the 14-

day appeal period but within the next 30 days, we REMAND the

case to the district court for the limited purpose of allowing the

court to determine whether Boulette has shown excusable neglect

or good cause warranting an extension of the appeal period. Following this limited remand, the record as supplemented will be

returned to this Court for further consideration. We defer ruling

on the government’s request to dismiss pending the limited remand.