United States v. Cross ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4926
EZEKIEL C. CROSS, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-99-357)
Submitted: February 27, 2003
Decided: March 13, 2003
Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
J. Kevin Holmes, THE STEINBERG LAW FIRM, L.L.P., Charles-
ton, South Carolina, for Appellant. J. Strom Thurmond, Jr., United
States Attorney, Robert H. Bickerton, Assistant United States Attor-
ney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. CROSS
OPINION
PER CURIAM:
Ezekiel Cross, Jr., pled guilty to conspiracy to possess with intent
to distribute and distribute heroin and cocaine, 21 U.S.C. § 846(2000), and was sentenced in May 2000 to a term of 200 months
imprisonment. In February 2001, after the government filed a Fed. R.
Crim. P. 35(b) motion, Cross’ sentence was reduced to 108 months.
Cross did not appeal either judgment until November 2001, when he
filed a pro se notice of appeal from the February 2001 judgment
order. Cross’ attorney has filed a brief pursuant to Anders v. Califor-
nia, 386 U.S. 738 (1967), raising as potentially meritorious issues
four allegations of error relating to the indictment and original sen-
tencing, but asserting that in his view there are no meritious issues for
appeal. Cross has filed a pro se supplemental brief raising two addi-
tional issues relating to his original sentencing.
A criminal defendant has ten days from the entry of the judgment
or order at issue to file a notice of appeal. See Fed. R. App. P. 4(b);
United States v. Breit, 754 F.2d 526, 528-29 (4th Cir. 1985) (applying
ten-day appeal period to Rule 35 motion). The appeal periods estab-
lished by Rule 4 are mandatory and jurisdictional. See Browder v.
Dir., Dep’t of Corr., 434 U.S. 257, 264 (1978). Cross alleges that this
court assumed jurisdiction over his appeal when a deputy clerk
informed him that he had "an absolute right of appeal." However,
because Cross’ notice of appeal from the February 14, 2001, amended
judgment was filed beyond the ten-day appeal period and beyond the
thirty-day period in which the district court could find excusable
neglect and extend the appeal period, this court cannot assert jurisdic-
tion over his appeal.
In his pro se supplemental brief, Cross claims that he would have
appealed the amended judgment had the district court informed him
at the Rule 35 hearing that he had the right to appeal. However,
appeals from a district court ruling on a Rule 35(b) motion for reduc-
tion of sentence are governed by 18 U.S.C. § 3742(a) (2000). United
States v. Pridgen, 64 F.3d 147, 149-50 (4th Cir. 1995). Under that
statute, this court does not have jurisdiction to review the extent of the
district court’s downward departure unless such a departure results in
UNITED STATES v. CROSS 3
a sentence that violates the law or is an incorrect application of the
guidelines. United States v. Hill, 70 F.3d 321, 324 (4th Cir. 1995).
Moreover, Cross does not directly contest the reduced sentence
imposed on February 14, 2001, but seeks instead to challenge his
original sentence. Because Cross did not file a timely appeal from the
original judgment entered on May 17, 2000, this court lacks jurisdic-
tion to consider any of the issues he seeks to raise here.
Pursuant to Anders, this court has reviewed the record to determine
whether there is any basis for jurisdiction over the appeal and found
none. We therefore dismiss the appeal for lack of jurisdiction. 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 this court
for leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on the client. 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