United States v. Anthony A. Smith ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4022
ANTHONY ANTONIO SMITH, a/k/a
Anthony Antonio Alexis Smith,
a/k/a Tony Smith,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
G. Ross Anderson, Jr., District Judge.
(CR-97-129, CA-98-2806-6-13)
Submitted: September 30, 1999
Decided: December 30, 1999
Before WILLIAMS, MICHAEL, and KING, Circuit Judges.
_________________________________________________________________
Remanded and vacated by unpublished per curiam opinion.
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COUNSEL
D. Garrison Hill, HILL, WYATT & BANNISTER, L.L.P., Green-
ville, South Carolina, for Appellant. J. Rene Josey, United States
Attorney, E. Jean Howard, Assistant United States Attorney, Green-
ville, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Anthony Antonio Smith appeals his criminal judgment for conspir-
acy to possess crack cocaine with the intent to distribute, and distribu-
tion of the same in violation of 21 U.S.C. § 846 (1994). The original
criminal judgment in this case was entered on September 29, 1997.
On September 25, 1998, Smith filed a motion for habeas relief under
28 U.S.C.A. § 2255 (West Supp. 1999), alleging that his attorney did
not file a requested notice of appeal. In response, the district court
vacated its earlier judgment and entered a new judgment on Novem-
ber 2, 1998, from which Smith was allowed to appeal timely. The
amended judgment, however, inaccurately advised Smith that he had
sixty days, rather than ten days as prescribed by Fed. R. App. P. 4(b),
to file an appeal.
Smith filed an appeal forty-four days after the entry of judgment.
Thus, the appeal was untimely under Rule 4(b) but within the time
period advised by the district court. We remand this case to the dis-
trict court with instructions that it vacate its amended judgment and
enter a new judgment that properly advises Smith that the appeal
period from the new judgment will be ten days. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
REMANDED AND VACATED
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