United States v. Kinard ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4636
TERRY KINARD,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-95-205)
Submitted: February 27, 1997
Decided: March 13, 1997
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
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COUNSEL
Ann Briks Walsh, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. J. Rene Josey, United States Attorney,
A. Peter Shahid, Jr., Assistant United States Attorney, Charleston,
South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Terry Kinard pled nolo contendere to a charge of bank robbery in
violation of 18 U.S.C. § 2113(a) (1994). He seeks to appeal his 151-
month sentence. The district court's judgment and commitment order
was entered on April 17, 1996. Kinard requested leave to file a notice
of appeal out of time on July 31, 1996. The district court granted the
motion on August 1, 1996, finding good cause and excusable neglect.
Kinard filed his notice of appeal on August 2, 1996.
In criminal cases, a defendant must file his notice of appeal within
ten days of the entry of judgment. Fed. R. App. P. 4(b). With or with-
out a motion, the district court may grant an extension of time to file
of up to thirty days upon a showing of excusable neglect if the notice
of appeal is filed within the thirty-day extension period. See United
States v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985). The district court
may not otherwise extend the time for filing a notice of appeal.
United States v. Avendano-Camacho, 786 F.2d 1392, 1394-95 (9th
Cir. 1986); United States v. Schuchardt, 685 F.2d 901 (4th Cir. 1982).
Kinard's notice of appeal and motion for an extension of time to
file were submitted 104 days after entry of judgment. The notice of
appeal is thus ineffective because the district court was without
authority to extend the time for filing beyond forty days after entry
of judgment. Schuchardt, 685 F.2d at 902. Kinard may seek a belated
appeal or review of his claims in a motion pursuant to 28 U.S.C.
§ 2255 (1994), amended by Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214.
We therefore dismiss the appeal for lack of jurisdiction. We dis-
pense 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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