Timeliness of appeal; Fed.R.App.P. 4(b)(1)(A); United States v. Gaytan-Garza; Whether the government could withdraw its opposition to the appeal; Sua sponte dismissal of late appeals; Deloatch v. Sessoms-Deloatch; United States v. Mitchell (10th Cir.); Whether the district court had jurisdiction to grant a defendant leave to file a late notice of appeal; United States v. Carman; Sentencing; Four-level leader enhancement under USSG § 3B1.1(a); Procedural waiver; United States v. Hall (Unpub. 6th Cir.); “Career offender” status under § 4B1.1

The court held that the government was free to withdraw its opposition to defendant-Jackson’s appeal where Rule 4(b) is simply a claims-processing rule, and the government withdrew its opposition before an order was entered. It also found that he waived his sentencing challenges, and that defendant-Combs was properly sentenced as a career offender. Defendants pled guilty to participating in a cocaine distribution ring. Both challenged their sentences on appeal. Jackson’s appeal was untimely. He claimed his attorney failed to file it. The district court ruled that a letter he sent to that court would be considered his request for leave to appeal, and that his second letter would constitute the filing of an appeal. The government did not oppose that first letter but did oppose the second. It later dropped its opposition. The court considered whether it could withdraw its opposition, and held that it could where “Rule 4(b) is merely a claims-processing rule” and the government withdrew its opposition before an order was entered. However, the court noted that it retained the power to sua sponte dismiss an untimely appeal “if the appeal ‘implicates the important judicial interests of finality of convictions and efficient administration of claim processing.’” It concluded that, while in some circumstances the six-month delay in Jackson’s appeal “might be considered enough to warrant dismissal, if it implicated important judicial interests[,]” those concerns did not exist here. But the court vacated the district court’s grant of leave to file a late notice of appeal (based on the first letter) where jurisdiction had already been transferred to the court based on the second letter. As to Jackson’s challenge to his four-level leader enhancement, his attorney acknowledged the validity of the enhancement in district court, which constituted a procedural waiver. The court noted that even if the claim had been preserved, there was ample evidence that the enhancement was appropriate. As for Combs, it held that his prior Kentucky drug-trafficking offense qualified as a “controlled substance offense.” Affirmed.