United States v. Stockton , 240 F. App'x 601 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5102
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROLANDO STOCKTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(1:99-cr-00352-MJG)
Submitted: June 29, 2007 Decided: July 18, 2007
Before TRAXLER, KING, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Thomas M. Donnelly, DONNELLY & MOWERY, LLC, Baltimore, Maryland,
for Appellant. Rod J. Rosenstein, United States Attorney, Andrea L.
Smith, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rolando Stockton was resentenced on March 12, 2004, and
his amended criminal judgment was entered in the docket on April 1,
2004. Thus, the appeal period began on April 1, 2004. By order
dated on September 14, 2006, the district court ordered the Clerk
to file a notice of appeal for Stockton “nunc pro tunc to March 12,
2004.” (J.A. 111). On October 24, 2006, a notice of appeal was
filed regarding the resentencing.
A criminal defendant has ten days to file a notice of
appeal contesting a criminal judgment. Fed. R. App. P. 4(b)(1)(A).
A district court may grant an extension of time up to thirty days
after the expiration of the appeal period, if there is a finding of
good cause or excusable neglect. Fed. R. App. P. 4(b)(4). The
district court only has authority, however, to extend the time to
file a notice of appeal for a period not to exceed thirty days from
the expiration of the time otherwise prescribed by Rule 4(b). Id.
The time periods presented in Rule 4(b) are mandatory and
jurisdictional. Browder v. Dir., Dep’t of Corrs., 434 U.S. 257, 267
(1978); United States v. Raynor, 939 F.2d 191, 197 (4th Cir. 1991).
A court may not enlarge the appeal period. United States v.
Robinson, 361 U.S. 220, 224 (1960). As Stockton’s notice of appeal
was filed over two years beyond the excusable neglect period
provided in Rule 4(b)(4), the appeal is untimely and therefore must
be dismissed.
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On appeal, counsel has filed a brief under Anders v.
California, 386 U.S. 738 (1967), conceding that Stockton’s appeal
is untimely and, consequently, stating that there are no meritorious
claims on appeal, but raising the following issue: whether the
district court erred by sentencing Stockton to the then-mandatory
Sentencing Guidelines.
Because Stockton’s appeal is untimely, however, we lack
jurisdiction to further consider his appeal, including the issue
raised by counsel and the issues raised in Stockton’s pro se
supplemental brief. Raynor, 939 F.2d at 197. Accordingly, we
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 in 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
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