USCA11 Case: 22-10293    Document: 25-1     Date Filed: 01/23/2023   Page: 1 of 4




                                               [DO NOT PUBLISH]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:
               Rodolfo Ortiz, proceeding pro se, appeals the district court’s
       denial of his motion for compassionate release under the First Step
       Act and the denial of his motion for reconsideration, 1 arguing the
       district court abused its discretion by denying him relief based on
       his criminal and personal history and characteristics. In its response
       brief, the Government seeks to dismiss this appeal as untimely. 2
              Ortiz’s appeal is untimely as it was filed 27 days after the dis-
       trict court entered its last relevant order. Fed. R. App. P.
       4(b)(1)(A)(i) (providing in a criminal case, a defendant must file a
       notice of appeal within 14 days after entry of the judgment or order
       being appealed); United States v. Fair, 

 (11th
       Cir. 2003) (stating a post-judgment motion to reduce a sentence


       1We liberally construe Ortiz’s notice of appeal as applying to both of the orders

       denying his motions. See United States v. Webb, 

 (11th Cir.
       2009) (stating we liberally construe pro se filings); Hill v. BellSouth Tele-
       comms., Inc., 

 (11th Cir. 2004) (stating while we generally
       have jurisdiction to review only judgments or orders specified in an appellant’s
       notice of appeal, we liberally construe notices of appeal “when (1) unnoticed
       claims or issues are inextricably intertwined with noticed ones and (2) the ad-
       verse party is not prejudiced”); United States v. Grant, 

, 1151
       (11th Cir. 2001) (liberally construing a notice of appeal in a criminal matter).
       2 We review de novo whether a criminal appeal should be dismissed as un-
       timely. United States v. Llewlyn, 

 (11th Cir. 2018).
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       22-10293                 Order of the Court                          3

       under § 3582 is criminal in nature). The district court entered an
       order denying Ortiz’s motion for compassionate release under
       

(c)(1)(A) on October 1, 2021. 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. As the Government has objected to the timeliness of Ortiz’s
       notice of appeal, we must apply Rule 4(b). See United States v.
       Lopez, 

 (11th Cir. 2009) (explaining Rule 4(b)’s
       deadline is a claims-processing rule and is not jurisdictional, and if
       the government raises the issue of timeliness we “must apply the
       time limits of Rule 4(b)”).
              However, upon a finding of good cause or excusable ne-
       glect, a district court may grant a 30-day extension of the 14-day
       deadline in a criminal case, either “before or after the time has ex-
       pired, . . . for a period not to exceed 30 days from the expiration of
       the time otherwise prescribed.” Fed. R. App. P. 4(b)(4). In criminal
       cases, we have customarily treated a late notice of appeal, 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 good
       cause or excusable neglect. United States v. Ward, 

 (11th Cir. 1983).
             Ortiz signed his notice of appeal within the 30-day period
       within which the district court could grant an extension. See Fed.
       R. App. P. 4(c); Houston v. Lack, 

 (1988) (stating a
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       4                        Opinion of the Court                    22-10293

       pro se prisoner’s notice of appeal is deemed filed on the date that
       he delivers it to prison authorities for mailing). As this Court did
       in Ward, we REMAND the case to the district court for the limited
       purpose of allowing the court to determine whether Ortiz has
       shown excusable neglect or good cause warranting an extension of
       the appeal period.
               Following this limited remand, the record as supple-
       mented will be returned for further consideration. 3 We defer rul-
       ing on the Government’s request to dismiss pending the limited
       remand.




       3Ortiz has filed a motion to file an out-of-time reply brief. His motion is
       GRANTED. See Fed. R. App. P. 26(b), 31(a)(1); 11th Cir. R. 31-1(a), 31-2(a).