United States v. Waddell ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-8238
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CLARK DUVALL WADDELL,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:97-cr-00255-JAB-1)
Submitted: May 3, 2010 Decided: May 27, 2010
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Clark Duvall Waddell, Appellant Pro Se. Angela Hewlett Miller,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clark Duvall Waddell seeks to appeal the district
court’s order denying his motion to revisit his motion for
sentence reduction. In criminal cases, the defendant must file
a notice of appeal within ten days after the entry of judgment
or the order being appealed. 1 Fed. R. App. P. 4(b)(1)(A); see
United States v. Little, 392 F.3d 671, 680-81 (4th Cir. 2004)
(applying Rule 4(b)(1)(A) appeal period to appeal from Rule 35
ruling). With or without a motion, upon a showing of excusable
neglect or good cause, the district court may grant an extension
of up to thirty days to file a notice of appeal. Fed. R. App.
P. 4(b)(4); United States v. Reyes, 759 F.2d 351, 353 (4th Cir.
1985).
The district court entered its order on October 20,
2009. The undated notice of appeal was filed on December 7,
2009. Because Waddell failed to file a timely notice of appeal
or obtain an extension of the appeal period, we dismiss the
1
Rule 4 of the Federal Rules of Appellate Procedure was
amended effective December 1, 2009, to establish a fourteen-day
appeal period in criminal appeals. Additionally, Fed. R. App.
P. 26, governing computation of time periods, was also amended
effective December 1, 2009, to require that all calendar days be
counted, rather than omitting weekends and holidays, as formerly
required. Although the time periods established by the earlier
version of the Federal Rules of Appellate Procedure apply in
this case, we note that Waddell’s appeal would have been
untimely under the new version of the rules.
2
appeal. 2 We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
DISMISSED
2
We recognize that the appeal period is not a
jurisdictional provision in criminal cases, but rather a claim
processing rule. See Bowles v. Russell, 551 U.S. 205, 209-14
(2007). Because Waddell’s appeal is meritless and its
consideration is not in the best interest of judicial economy,
see United States v. Goodwyn, 596 F.3d 233, 235 (4th Cir. 2010)
(recognizing that Rule 35(a) authorizes the reconsideration of a
sentence only if a motion is filed within fourteen days of
judgment and only if it is necessary to correct an
“arithmetical, technical, or other clear error”), we exercise
our inherent power to dismiss it. See United States v.
Mitchell, 518 F.3d 740, 744 (10th Cir. 2008).
3