United States v. Estrada-Ramirez ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4269
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MANUEL ESTRADA-RAMIREZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:06-cr-00291)
Submitted: August 20, 2007 Decided: August 29, 2007
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Columbia, South Carolina, Sean Kittrell, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Manuel Estrada-Ramirez seeks to appeal his conviction and
thirty-month sentence, pursuant to a guilty plea, to unauthorized
reentry after deportation as an aggravated felon, 8 U.S.C.
§ 1326(a) (2000). Estrada-Ramirez’s attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious issues for appeal. The Government
has not filed a brief, and Estrada-Ramirez, though informed of his
right to file a pro se supplemental brief, has not filed such a
document.
In criminal cases, the defendant must file a notice of
appeal within ten days after the entry of judgment. Fed. R. App.
P. 4(b)(1)(A). 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). When the notice of appeal is filed more than thirty
days after expiration of the appeal period, neither the district
court nor this court may grant an extension. United States v.
Schuchardt, 685 F.2d 901, 902 (4th Cir. 1982). Here, the district
court entered judgment on June 26, 2006. The notice of appeal can
be deemed filed, at the earliest, on November 27, 2006,1 beyond
1
For the purpose of this appeal, we assume that the date
appearing on the notice of appeal is the earliest date it could
(continued...)
- 2 -
both the ten-day appeal term and the excusable neglect period.
Because Estrada-Ramirez failed to file a timely notice of appeal,2
we dismiss the appeal.3
Pursuant to Anders, this court has reviewed the record to
determine whether there is any basis for jurisdiction over the
appeal and found none. This court requires that counsel inform his
client, in writing, of his right to petition the Supreme Court of
the United States for further review. If the client requests that
a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for leave
to withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client. Finally, 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
1
(...continued)
have been properly delivered to prison officials for mailing to the
court. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266 (1988).
2
If Estrada-Ramirez wishes to assert that he asked counsel to
file a notice of appeal and counsel failed to do so, he should
raise this ineffective assistance of counsel claim in a 28 U.S.C.
§ 2255 (2000) motion. See United States v. Peak, 992 F.2d 39,
41-42 (4th Cir. 1993).
3
The district court was without jurisdiction to grant Estrada-
Ramirez’s motion for leave to file a notice of appeal out of time,
as it was filed beyond the jurisdictional time limits set forth in
Rule 4(b).
- 3 -