United States v. Kemp , 399 F. App'x 806 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7024
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHERMAN KEMP,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, District Judge.
(1:07-cr-00295-BEL-1; 1:09-cv-01575-BEL)
Submitted: September 22, 2010 Decided: October 27, 2010
Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Sherman Kemp, Appellant Pro Se. Ayn Brigoli Ducao, OFFICE OF
THE UNITED STATES ATTORNEY, Charles Joseph Peters, Sr.,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sherman Kemp seeks to appeal the district court’s
order dismissing without prejudice his 28 U.S.C.A. § 2255 (West
Supp. 2010) motion to vacate his sentence. We dismiss the
appeal for lack of jurisdiction because the notice of appeal was
not timely filed.
When the United States or its officer or agency is a
party, the notice of appeal must be filed no more than sixty
days after the entry of the district court’s final judgment or
order, Fed. R. App. P. 4(a)(1)(B), unless the district court
extends the appeal period under Fed. R. App. P. 4(a)(5), or
reopens the appeal period under Fed. R. App. P. 4(a)(6). “[T]he
timely filing of a notice of appeal in a civil case is a
jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205,
214 (2007).
The district court’s order was entered on the docket
on March 26, 2010. The notice of appeal was filed on July 19,
2010. Along with his untimely notice of appeal, Kemp filed a
motion to extend time in which to file a notice of appeal based
on his claim that the district court sent the final order as
well as an order to reply to the Government’s response to the
federal prison at which Kemp had been previously confined, prior
to his transfer to a different facility. The district court,
applying Fed. R. App. P. 4(a)(5), found that because Kemp had
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failed to apprise the court of his change of address, and that
failure resulted in the misrouted orders, he could not show good
cause or excusable neglect for the delay, and denied Kemp’s
motion.
Because Kemp claimed that he never received the
district court’s order dismissing his § 2255 motion, the
district court should have applied Fed. R. App. P. 4(a)(6) in
evaluating Kemp’s motion. Pursuant to Rule 4(a)(6), the
district court may reopen the appeal period for fourteen days if
it finds that: (1) a party entitled to notice of entry of
judgment did not timely receive the notice, and (2) no party
would be prejudiced. Fed. R. App. P. 4(a)(6). This provision
requires a motion to reopen to be filed on or before the earlier
of 180 days following entry of judgment or fourteen days after
receipt of the judgment. Id.
Though the district court may have mistakenly applied
Rule 4(a)(5)’s good cause and excusable neglect requirements to
Kemp’s motion, we conclude that had the court applied Rule
4(a)(6), the outcome would be the same. Rule 4(a)(6) is
permissive, and allows a district court to deny a motion arising
under that rule even if the movant meets the rule’s
requirements. See Benavides v. Bureau of Prisons, 79 F.3d 1211,
1214 (D.C. Cir. 1996) (affirming denial of Rule 4(a)(6) motion
where movant failed to notify court of address change); see also
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In re Jones, 970 F.2d 36, 39 (5th Cir. 1992) (noting that Rule
4(a)(6) is discretionary). Because Kemp’s failure to keep the
court apprised of his address change led to his not receiving
the court’s orders, he is not entitled to relief under Rule
4(a)(6) for the same reason he was not entitled to relief under
Rule 4(a)(5).
We therefore dismiss the appeal as untimely. 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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