United States v. Philip Martin Sadler

BERZON, Circuit Judge:

The question we address concerns the application of two recent Supreme Court cases, Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam), and Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004), to Federal Rule of Appellate Procedure (“FRAP”) 4(b). We have long assumed that FRAP 4 is, in general, “mandatory and jurisdictional,” and therefore not forfeitable1 or waivable. Kontrick and *934Eberhart, however, clarified that procedural rules formerly referred to as “mandatory and jurisdictional” may be, instead, simply…