The opinion
FILED
NOT FOR PUBLICATION OCT 5 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10007
Plaintiff - Appellee, D.C. No. 2:05-cr-00580-SMM
v.
MEMORANDUM *
CHRISTOPHER AUGUSTINE BROWN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Submitted September 27, 2011 **
Before: HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.
Christopher Augustine Brown appeals pro se from the district court’s denial
of his motion for an extension of time to file an appeal, and of his motion to correct
his underlying sentence based on a computation error. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We first address whether we may hear Brown’s appeal. The district court
properly denied Brown’s untimely request for an extension of time to file an appeal
of his sentence because he failed to establish excusable neglect. See Fed. R. App.
P. 4(b); United States v. Mortensen, 860 F.2d 948, 949 (9th Cir. 1988).
Nevertheless, because the government forfeited the argument that Brown’s appeal
is untimely, we may exercise jurisdiction over Brown’s claim. See United States v.
Sadler, 480 F.3d 932, 940 (9th Cir. 2007). Likewise, the plea agreement does not
preclude review of Brown’s claim, as the agreement is silent regarding his right to
challenge an alleged computation error. See United States v. Speelman, 431 F.3d
1226, 1229-31 (9th Cir. 2005).
Brown is not entitled to relief, however, because the record reflects the
district court did not award credit, nor did it intend to credit him, for the time he
spent in state custody.
Brown’s opening brief also seeks to raise additional arguments presented for
the first time on appeal, which we decline to consider. See Smith v. Marsh, 194
F.3d 1045, 1052 (9th Cir. 1999).
AFFIRMED.
2 10-10007