Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 CR 51-1--George W. Lindberg, Judge.
Before Coffey, Easterbrook, and Diane P. Wood, Circuit Judges.
The opinion of the court was delivered by: Diane P. Wood, Circuit Judge.
In this appeal, Alejandro Alvarez-Martinez challenges the sentence he received for the offense of being present in the United States, without the express consent of the Attorney General, after having previously been deported as a convicted felon. See 8 U.S.C. sec. 1326(a). The district court concluded that Alvarez's prior Illinois conviction for burglary of a vehicle constituted an "aggravated felony" for purposes of the Sentencing Guidelines, and thus increased his base offense level of 8 by 16 more levels under U.S.S.G. sec. 2L1.2(b). Alvarez argues that this was error, because in Illinois burglary of a vehicle is not on its face a crime of violence. We conclude that, in the circumstances of this case, the earlier offense qualified as an aggravated felony and we therefore affirm.
Although Alvarez is still a Mexican citizen, he came to the United States with his parents while he was a young child, before he started grade school. On August 11, 1990, he broke into a locked car and stole the stereo system. He was caught and charged in a criminal information with burglary, in violation of what is now 720 ILCS 5/19-1(a). He pleaded guilty to that charge and was sentenced to six years' imprisonment. Two years into that sentence, the Immigration and Naturalization Service (INS) initiated deportation proceedings against him. This laid the groundwork for his deportation in 1993. Upon his release from custody, he was arrested and formally warned that re-entry into the United States after deportation, in the absence of express permission from the Attorney General, would violate 8 U.S.C. sec. 1326, a criminal statute. Alvarez signed an acknowledgment (in Spanish) that he had received this warning. He was deported to Mexico in September 1993 as an aggravated felon.
These warnings evidently did not have much of an in terrorem effect: four months later, in January 1994, Alvarez returned to the United States illegally. He made his way back to Elgin, Illinois, where he was arrested on January 22, 1994, on charges of battery and resisting a peace officer. In short order, he was charged on February 22, 1994, in a criminal information with violating 8 U.S.C. sec.sec. 1326(a) and (b), by respectively being present in the United States without the Attorney General's permission and also after arrest and deportation for commission of an aggravated felony.
Alvarez agreed to a written plea agreement, and, in keeping with its terms, he pleaded guilty to the charge in the information. In the agreement, he reserved the right to argue that his 1991 Illinois burglary conviction was not, as a matter of law, an "aggravated felony" for purposes of U.S.S.G. sec. 2L1.2. Although Alvarez was scheduled to be sentenced in September 1994, in late August he fled, and a warrant was issued for his arrest. He remained a fugitive until July 2000, when the Elgin police again found him and arrested him on a variety of other charges. Sentencing proceeded, and as we note in more detail below, the district court rejected his argument about sec. 2L1.2, added 16 levels to the base level of eight, added two more for obstruction of justice because of his flight, and refused to make any downward adjustments, giving him a final offense level of 26. With 14 criminal history points, he fell in Criminal History Category VI. The court sentenced him at the bottom of that range to 120 months' imprisonment.
Before moving to the merits of Alvarez's appeal, we must confirm that we have proper appellate jurisdiction over it. The problem relates to the timeliness of his notice of appeal, and more specifically to the propriety of the district court's order granting him an extension of time under Fed. R. App. P. 4(b)(4). The district court entered its judgment on January 30, 2001, which meant that his notice of appeal had to be filed by February 9, 2001, in order to be timely. See Fed. R. App. P. 4(b)(1), 26(a)(2). Alvarez did not file by that date. Instead, on February 13, his lawyer moved for an extension of time under Fed. R. App. P. 4(b)(4), which provides that:
[u]pon a finding of excusable neglect or good cause, the district court may--before or after the time has expired, with or without motion and notice--extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).
The government did not oppose the motion. At a hearing on February 15, the court granted it with no explanation. Alvarez filed his notice of appeal that very day.
Our review of the district court's decision is only for abuse of discretion. See United States v. Brown, 133 F.3d 993, 996 (7th Cir. 1998). Even with that generous standard of review, the present case strikes us as a borderline one. On the one hand, the reasons counsel offered for his failure to file by February 9 do not thoroughly dispel the notion that he just miscalculated the date. Counsel told the district court that he did not think Alvarez wanted to appeal, that he did not meet with Alvarez after sentencing, that he thought Alvarez had mental problems, and that counsel himself was coping with two deaths in his family. Counsel did not speak to Alvarez until February 12, when he confirmed that Alvarez wanted to appeal. On the other hand, the district court reasonably might have inferred from this account that the real problem was not carelessness in calculating the date, but a more serious potential problem of communication with the client. The court was undoubtedly well aware that if the lawyer had abandoned Alvarez at this critical juncture, Alvarez would have been entitled to file a motion under 28 U.S.C. sec. 2255 claiming ineffective assistance of counsel through a failure to file a notice of appeal. See Roe v. Flores-Ortega, 528 U.S. 470 (2000). If the court thought the likelihood of success was sufficiently high on such a motion, it reasonably might have concluded that good cause had also been shown to extend the time for filing a notice of appeal in the ordinary course, thus avoiding the need for a time-consuming ancillary proceeding.
It would have been helpful if the district court had given its reasons for ruling as it did, but we see no need to remand for a statement of reasons if they can be discerned from the record we have. We are satisfied that this is not a simple case of miscalculation, which would have required us to dismiss the appeal for lack of appellate jurisdiction. See United States v. Marbley, 81 F.3d 51, 52 (7th Cir. 1996); United States v. Guy, 140 F.3d 735 (7th Cir. 1998). And while it is not at all excusable for a lawyer to fail to file a timely notice of appeal in a criminal matter, especially if the only reason is preoccupation with other matters, see In re Plunkett, 82 F.3d 738, 742 (7th Cir. 1996), we must also take into account the Supreme Court's guidance in the analogous area of bankruptcy appeals governed by Bkr. Rule 9006. See Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380 (1993); see also Stutson v. United States, 516 U.S. 193 (1996) (recognizing possible applicability of Pioneer Investment toappeals governed by Fed. R. App. P. 4(b)). The overriding message of Pioneer Investment is that the district court has broad powers under rules like Bkr. Rule 9006 or Fed. R. App. P. 4 to grant extensions of time. By granting an extension here, the district court allowed counsel to mend a ...