United States v. Albert Burgess , 623 F. App'x 613 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6932
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALBERT CHARLES BURGESS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Graham C. Mullen,
Senior District Judge. (1:09-cr-00017-GCM-DLH-1)
Submitted: October 29, 2015 Decided: December 2, 2015
Before NIEMEYER and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Albert Charles Burgess, Appellant Pro Se. Thomas Richard Ascik,
Assistant United States Attorney, Asheville, North Carolina,
Kimlani M. Ford, Cortney Randall, Edward R. Ryan, Assistant
United States Attorneys, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Albert Charles Burgess, Jr., seeks to appeal the district
court’s order denying his motion to reconsider its order denying
his Fed. R. Crim. P. 33 motion for a new trial. In criminal
cases, the defendant must file his notice of appeal within 14
days after the entry of judgment. Fed. R. App. P.
4(b)(1)(A)(i).
The district court entered its order denying Burgess’
motion for a new trial on April 30, 2012. The 14-day appeal
period expired on May 14, 2012. See Fed. R. App. P. 26(a).
Burgess did not file his motion to reconsider until May 28,
2015. *
“[T]he Federal Rules of Criminal Procedure do not
specifically provide for motions for reconsideration and
prescribe the time in which they must be filed.” Nilson Van &
Storage Co. v. Marsh, 755 F.2d 362, 364 (4th Cir. 1985).
However, the Supreme Court has held that a motion for rehearing
or reconsideration extends the time for filing a notice of
appeal in a criminal case if the motion is filed before the
order sought to be reconsidered becomes final. See United
*
For the purpose of this appeal, we assume that the date
appearing on the motion to reconsider is the earliest date it
could have been properly delivered to prison officials for
mailing to the court. See Houston v. Lack, 487 U.S. 266, 276
(1988).
2
States v. Ibarra, 502 U.S. 1, 4 n.2 (1991) (per curiam) (holding
that would-be appellants who file a timely motion for
reconsideration from a criminal judgment are entitled to a full
time period for noticing the appeal after the motion for
reconsideration has been decided); United States v. Dieter,
429 U.S. 6, 7-8 (1976) (same); United States v. Christy, 3 F.3d
765, 767 n.1 (4th Cir. 1993) (same). Because Burgess did not
timely file the motion to reconsider, the district court should
have denied the motion as untimely. We therefore affirm the
denial of the motion to reconsider on the ground that the motion
was untimely.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
3