United States v. Gayles

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4109
WILLIE E. GAYLES,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-99-49)
Submitted: July 20, 2000
Decided: August 8, 2000
Before WILKINS and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
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Dismissed by unpublished per curiam opinion.
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COUNSEL
Amy M. Curtis, BOWEN, BRYANT, CHAMPLIN & CARR, Rich-
mond, Virginia, for Appellant. Helen F. Fahey, United States Attor-
ney, Stephen W. Miller, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Willie E. Gayles appeals from a ninety-two month sentence
imposed following his conditional guilty plea to being a felon in pos-
session of a firearm, 18 U.S.C.A. § 922(g)(1) (West Supp. 2000). For
the reasons set forth below, we dismiss this appeal for lack of juris-
diction.
Although the Government does not challenge our jurisdiction to
consider this appeal, we are obligated to review our jurisdiction sua
sponte in all cases. See United States v. Blackwell, 900 F.2d 742, 746
(4th Cir. 1990). The time periods for filing notices of appeal are gov-
erned by Fed. R. App. P. 4. These periods are "mandatory and juris-
dictional." Browder v. Director, Dep't of Corrections, 434 U.S. 257,
264 (1978) (quoting United States v. Robinson , 361 U.S. 220, 229
(1960)). Appeals in criminal cases must be brought within ten days
after entry of the judgment. See Fed. R. App. P. 4(b)(1). This appeal
period may be extended for a period of time not to exceed thirty days
from the expiration of the ten-day appeal period. See Fed. R. App. P.
4(b)(4); see also United States v. Tarrant, 158 F.3d 946, 947 (6th Cir.
1998), cert. denied, 525 U.S. 1168 (1999); United States v. Schu-
chardt, 685 F.2d 901, 902 (4th Cir. 1982).
Gayles' failure to note a timely appeal or obtain an extension of the
appeal period within the applicable extension period leaves this court
without jurisdiction to consider the merits of his appeal. Moreover,
the record does not conclusively demonstrate that his failure to note
a timely appeal was due to counsel's deficient representation. Accord-
ingly, we dismiss the appeal without prejudice to Gayles' right to seek
relief under 28 U.S.C.A. § 2255 (West Supp. 2000). We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED
2