USA v. Rodolfo Ortiz, No. 22-10293 (11th Cir. 2023)
Annotate this Case
The court issued a subsequent related opinion or order on February 16, 2023.
The court issued a subsequent related opinion or order on June 27, 2023.
Download PDF
USCA11 Case: 22-10293 Document: 25-1 Date Filed: 01/23/2023 Page: 1 of 4 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-10293 Non-Argument Calendar ____________________ UNITED STATES OF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 USCA11 Case: 22-10293 2 Document: 25-1 Date Filed: 01/23/2023 Opinion of the Court Page: 2 of 4 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 district 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, 326 F.3d 1317, 1318 (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, 565 F.3d 789, 792 (11th Cir. 2009) (stating we liberally construe pro se filings); Hill v. BellSouth Telecomms., Inc., 364 F.3d 1308, 1313 (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 adverse party is not prejudiced”); United States v. Grant, 256 F.3d 1146, 1151 (11th Cir. 2001) (liberally construing a notice of appeal in a criminal matter). We review de novo whether a criminal appeal should be dismissed as untimely. United States v. Llewlyn, 879 F.3d 1291, 1293-94 (11th Cir. 2018). 2 USCA11 Case: 22-10293 22-10293 Document: 25-1 Date Filed: 01/23/2023 Order of the Court Page: 3 of 4 3 under § 3582 is criminal in nature). The district court entered an order denying Ortiz’s motion for compassionate release under 18 U.S.C. § 3582(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, 562 F.3d 1309, 1313 (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 neglect, 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 expired, . . . 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, 696 F.2d 1315, 1317-18 (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, 487 U.S. 266, 276 (1988) (stating a USCA11 Case: 22-10293 4 Document: 25-1 Date Filed: 01/23/2023 Opinion of the Court Page: 4 of 4 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 supplemented will be returned for further consideration. 3 We defer ruling on the Government’s request to dismiss pending the limited remand. Ortiz 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). 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
