United States v. Robert Lee Benton, Jr. , 522 F. App'x 672 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15387
Non-Argument Calendar
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D.C. Docket No. 1:10-cr-00251-JRH-WLB-9
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT LEE BELTON, JR.,
a.k.a. Pookie,
a.k.a. Boss Mac,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(June 25, 2013)
Before BARKETT, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
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Robert Lee Belton, Jr., a federal prisoner proceeding pro se, appeals the
district court’s denial of his motion for the “reproduction” of various documents.
In May 2011, Belton pled guilty to conspiracy to distribute and possess with intent
to distribute controlled substances, and, in November 2011, he was sentenced to
158 months’ imprisonment. In August 2012, Belton filed a “Motion for Release of
Prior Proceedings for [Purpose] of Appeal Pursuant to [18 U.S.C. §]
3006(A)(VI)(XI) That Rights of Petition[er] be Protected.” Belton requested the
“reproduction” of the transcript of his change-of-plea hearing, in addition to
motions and documents filed in his case, and he indicated that the documents were
requested for his right of appeal.
The district court denied Belton’s motion on September 20, 2012 , finding
that, to the extent he requested a transcript for an appeal, he had no appeal pending
and any appeal would be frivolous and dismissed as untimely. Further, to the
extent that he requested free copies of his record, the court denied that request.
Belton filed an “Opposition” to the court’s order which the district court construed
as the filing of a notice of appeal.
Initially, we reject the government’s argument suggesting that because the
district court’s order denying Belton’s motion was not a final order, we have no
jurisdiction of this appeal. However, we find no reversible error. On the merits,
Belton argues that he was not informed that his plea agreement would result in a
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158-month sentence, and that he should be allowed to withdraw his plea and to
enter a new plea agreement in which he would plead guilty to a lesser-included
offense with a statutory maximum of 53 months imprisonment. Belton also
discusses a “crack amendment” to the Sentencing Guidelines and requests a
sentence reduction under Fed.R.Crim.P. 35(b). The government responds that
Belton’s notice of appeal only encompasses the September 20 order and that we
lack jurisdiction to review any other ruling.
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.” See Hill v. BellSouth Telecomm., Inc., 364 F.3d 1308, 1313 (11th Cir.
2004) (discussing liberal construction of notices of appeals in the civil context). In
addition, we liberally construe pro se pleadings. Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998). However, issues that are not raised in a
brief on appeal are considered abandoned. United States v. Rodriguez, 279 F.3d
947, 951 n.3 (11th Cir. 2002).
A criminal defendant’s notice of appeal must be filed within 14 days of the
entry of judgment, or within 30 days upon a finding of good cause.
Fed.R.App.P. 4(b)(1)(A), (b)(4). Although the timeliness of a defendant’s criminal
appeal is not jurisdictional, we have the power to dismiss an untimely appeal by a
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criminal defendant upon request by the government. United States v. Lopez, 562
F.3d 1309, 1310 (11th Cir. 2009).
In this case, Belton’s notice of appeal specified that he sought to appeal the
district court’s September 20 order denying his motion for documents. Even
liberally construed, Belton did not specify that he was appealing his sentence or
conviction, or that he sought a sentence reduction based on an amendment to the
Sentencing Guidelines. Accordingly, our review is limited to the district court’s
September 20 order denying the instant motion for documents, and we do not
consider Belton’s arguments relating to his conviction and sentence. Moreover,
Belton raises no argument on appeal relating to the district court’s order denying
the instant motion, and, thus, that issue is abandoned.
Upon review of the entire record on appeal, and upon consideration of
parties’ appellate briefs, the district court’s order is
AFFIRMED.
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