United States v. Charlie Evans

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4029
CHARLIE ANDREW EVANS,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-96-222)
Submitted: June 15, 1999
Decided: July 23, 1999
Before WIDENER and ERVIN, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Walter T. Johnson, Greensboro, North Carolina, for Appellant. Walter
C. Holton, Jr., United States Attorney, Lisa B. Boggs, Assistant
United States Attorney, Greensboro, North Carolina for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Charlie Andrew Evans pled guilty to conspiracy to possess with
intent to distribute and to distribute cocaine and cocaine base in viola-
tion of 21 U.S.C. § 846 (1994). The judgment of conviction was
entered on September 24, 1997. At the sentencing hearing, the district
court informed Evans that he had ten days to note an appeal. On
November 17, 1997, Evans filed a pro se notice of appeal, which the
district court construed as a motion for an extension of the appeal
period. On December 19, 1997, the district court granted the motion
and extended the appeal period until December 31, 1997. Evans filed
a second notice of appeal on December 29, 1997.
Although the Government does not challenge this court's jurisdic-
tion to consider this appeal, "the Court is obligated to review its juris-
diction sua sponte in all cases." See United States v. Blackwell, 900
F.2d 742, 746 (4th Cir. 1990). Rule 4(b) of the Federal Rules of
Appellate Procedure requires a notice of appeal in a criminal case to
be filed within ten days of entry of judgment. The district court may
extend the time for filing a notice of appeal for thirty days upon a
showing of excusable neglect or good cause. The appeal periods
established by Rule 4(b) for criminal appeals are"mandatory and
jurisdictional." See United States v. Raynor , 939 F.2d 191, 197 (4th
Cir. 1991). The district court may not otherwise extend the time for
filing a notice of appeal. See United States v. Awalt, 728 F.2d 704,
705 (5th Cir. 1984).
Evans's November 17 notice of appeal was filed more than forty
days after the entry of judgment. Because that pleading was filed
beyond the forty-day period, it was untimely even if construed as a
motion to extend the appeal period. Furthermore, the district court
was without authority to extend the appeal period beyond the forty
days and permit Evans until December 31, 1997, in which to file a
notice of appeal. See, e.g., United States v. Tarrant, 158 F.3d 946,
947 (6th Cir. 1998) (district court has discretion to grant motion to
extend appeal period only if motion to extend is filed within forty
days of entry of judgment), cert. denied, ___ U.S. ___, 67 U.S.L.W.
3527 (U.S. Feb. 22, 1999) (No. 98-7725); Awalt , 728 F.2d at 705 ("To
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have the opportunity to seek relief by showing excusable neglect, the
late notice or some other filing evidencing an intention to appeal must
be filed within the forty-day period."); United States v. Schuchardt,
685 F.2d 901, 902 (4th Cir. 1982) (criminal defendant's motion to file
a late notice of appeal, filed beyond the thirty-day extension period,
was untimely). Consequently, we are without jurisdiction to hear the
appeal. See Raynor, 939 F.2d at 197. We therefore dismiss the appeal
for lack of jurisdiction. 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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