United States v. Braxton

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6047
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SAVINO BRAXTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (CR-
90-135-K)
Submitted: July 29, 2004 Decided: August 4, 2004
Before LUTTIG, MICHAEL, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Savino Braxton, Appellant Pro Se. Andrea L. Smith, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Savino Braxton seeks to appeal the district court’s
denial of his supplemental motion for a reduction of his sentence
pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure.
We dismiss the appeal for lack of jurisdiction because the notice
of appeal was not timely filed.
Movants are accorded ten days after the entry of the
district court’s final judgment or order to note an appeal in
criminal cases. Fed. R. App. P. 4(b)(1); United States v. Breit,
754 F.2d 526, 528 (4th Cir. 1985) (applying ten-day appeal period
to Rule 35 motion). The district court’s order was entered on the
docket on November 10, 2003. Under Houston v. Lack, 487 U.S. 266(1988), the earliest date we may consider Braxton filed his notice
of appeal is December 14, 2003. Because the notice of appeal was
filed within the excusable neglect period provided in Fed. R. App.
P. 4(b)(4), the district court ordered Braxton to show why his late
filing should be excused. After reviewing Braxton’s response, the
district court concluded that Braxton failed to demonstrate
excusable neglect or good cause and we find no abuse of that
discretion. Breit, 754 F.2d at 528 (providing standard of review).
Because Braxton failed to timely file an appeal or obtain
an extension of the appeal period, we dismiss the appeal for lack
of jurisdiction. We dispense with oral argument because the facts
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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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