United States v. Richard Smith, Jr. ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7118
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD ALLEN SMITH, JR., a/k/a Smitty
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Frederick P. Stamp, Jr.,
Senior District Judge. (2:00-cr-00007-FPS-JES-1)
Submitted: November 18, 2014 Decided: November 21, 2014
Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Richard Allen Smith, Jr., Appellant Pro Se. Stephen Donald
Warner, Assistant United States Attorney, Elkins, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Allen Smith, Jr., seeks to appeal his 2002
criminal judgment. 1 The version of Federal Rule of Appellate
Procedure 4(b)(1)(A) in effect at the time of Smith’s conviction
required a defendant to file a notice of appeal within ten days
after the entry of judgment. With or without a motion, upon a
showing of excusable neglect or good cause, the district court
may grant an extension of up to thirty days to file a notice of
appeal. Fed. R. App. P. 4(b)(4); United States v. Reyes, 759
F.2d 351, 353 (4th Cir. 1985).
The district court entered judgment on March 20, 2002.
Smith filed the present notice of appeal on July 23, 2014, 2 more
than twelve years beyond the expiration of the then-applicable
ten-day appeal period and subsequent thirty-day excusable
neglect period. Because Smith failed to file a timely notice of
appeal or obtain an extension of the appeal period, we dismiss
1
This court previously affirmed Smith’s convictions and
sentence. United States v. Smith, 51 F. App’x 415 (4th Cir.
2002) (No. 02-4260) (unpublished).
2
For the purpose of this appeal, we assume that the date
appearing on the notice of appeal is the earliest date it could
have been properly delivered to prison officials for mailing to
the court. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266(1988).
2
the appeal. 3 We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
DISMISSED
3
Although the timely filing of a notice of appeal in a
criminal case is not a jurisdictional requirement, United
States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009), Smith’s
appeal is inordinately late. Accordingly, we exercise our
inherent power to dismiss it. United States v. Mitchell, 518
F.3d 740, 750 (10th Cir. 2008).
3