Haynes v. United States , 114 F. App'x 578 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7173
LINO H. HAYNES, a/k/a Loni Haynes, a/k/a Nino,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (CR-90-105-N)
Submitted: November 17, 2004 Decided: December 1, 2004
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Lino H. Haynes, Appellant Pro Se. Laura Marie Everhart, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Lino H. Haynes seeks to appeal the district court’s order
denying in part and granting in part his Fed. R. Crim. P. 35
motion. In criminal cases, the defendant must file his notice of
appeal within ten business days of the entry of judgment. Fed. R.
App. P. 4(b)(1)(A) and 26(a)(2); see United States v. Breit, 754
F.2d 526, 528-29 (4th Cir. 1985) (holding that ten-day appeal
period applies to appeals from Rule 35 ruling). With or without a
motion, the district court may grant an extension of time of up to
thirty days upon a showing of excusable neglect or good cause.
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 May 11, 2004; the
ten-day appeal period expired on May 25. See Fed. R. App. P.
26(a)(2). Haynes filed his notice of appeal after both the ten-day
period and the thirty-day excusable-neglect period had expired.
The notice of appeal is thus untimely, and the appeal must be
dismissed. Therefore, we grant Haynes’ motion to amend his brief,
deny his motion to proceed in forma pauperis, and dismiss the
appeal for lack of jurisdiction. 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
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