United States v. Reynolds ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4189
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM FREDERICK REYNOLDS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Lacy H. Thornburg,
District Judge. (3:04-cr-00107-1)
Submitted: May 5, 2006 Decided: May 23, 2006
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Joseph Michael McGuinness, Elizabethtown, North Carolina; Carol Ann
Bauer, Morgantown, North Carolina, for Appellant. Gretchen C. F.
Shappert, United States Attorney, Kenneth Michel Smith, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
William Frederick Reynolds seeks to appeal his
convictions and 144-month sentence following his guilty plea to
bank robbery and possessing a firearm during and in relation to a
crime of violence, in violation of 18 U.S.C. §§ 2, 2113(a), 924(c)
(2000). Reynolds moved for an extension of time to file his notice
of appeal as to his criminal judgment, which the district court
denied. Reynolds then appealed the district court’s order denying
his motion. We dismiss the appeal to the extent Reynolds seeks to
appeal his criminal judgment, and we affirm the district court’s
order denying Reynolds’s motion for an extension to appeal.
In a criminal case, the defendant must file his notice of
appeal within ten days from the entry of the order or judgment.
Fed. R. App. P. 4(b)(1)(A). With or without a motion, the district
court may grant an extension of time to file 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).
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). The appeal periods established
by Rule 4 are mandatory and jurisdictional. Browder v. Director,
Dep’t of Corr., 434 U.S. 257, 264 (1978).
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The district court entered the criminal judgment on June
22, 2005; the ten-day appeal period expired on July 7, 2005.
Reynolds filed his pro se motion for an extension of time to file
his appeal on October 14, 2005. On January 31, 2006, the district
court properly denied Reynolds’s motion because it was well beyond
the excusable neglect period. On February 10, 2006, Reynolds noted
an appeal from the January 31, 2006 order “denying the motion to
restore appellate rights.”
Accordingly, we affirm the district court’s order denying
Reynolds’s motion, and we dismiss the appeal as to Reynolds’s
underlying criminal judgment.* 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.
AFFIRMED IN PART;
DISMISSED IN PART
*
Any claim Reynolds may have regarding ineffective assistance
of counsel in failing to timely note a requested appeal from his
criminal judgment should be brought in a motion under 28 U.S.C. §
2255 (2000). See United States v. Peak, 992 F.2d 39 (4th Cir.
1993).
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