United States v. Young

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6773
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NATHAN DANTE YOUNG,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis III, District
Judge. (CR-99-201; 02-959-AM)
Submitted: August 12, 2004 Decided: August 19, 2004
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Nathan Dante Young, Appellant Pro Se. Justin W. Williams,
Assistant United States Attorney, Alexandria, Virginia; Thomas
Gerard Connolly, HARRIS, WILTSHIRE & GRANNIS, Washington, D.C., for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Nathan Dante Young seeks to appeal the district court’s
order denying his 28 U.S.C. § 2255 (2000) motion. 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). This appeal period is
“mandatory and jurisdictional.” Browder v. Director, Dep’t of
Corrs., 434 U.S. 257, 264 (1978).
The district court’s order dismissing Young’s § 2255
motion was entered on the docket on February 3, 2003. On January
29, 2004, Young filed a motion to reopen the appeal period under
Fed. R. App. P. 4(a)(6). On February 26, 2004, the district court
granted the motion, and Young filed a notice of appeal on March 3,
2004.1
Although the district court granted Young’s motion to
reopen the appeal period, we find Young is not entitled to that
1
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. See Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266(1988).
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relief. The plain language of Rule 4(a)(6) requires a motion to
reopen be filed “within 180 days after the judgment or order is
entered or within 7 days after the moving party receives notice of
the entry, whichever is earlier” (emphasis added). Because Young’s
motion to reopen was filed more than 180 days after the order was
entered, the district court lacked authority to reopen the appeal
period.2 Hensley v. Chesapeake & Ohio Ry. Co., 651 F.2d 226, 228
(4th Cir. 1981) (noting expiration of the time limits in Rule 4
deprives the court of jurisdiction).
Accordingly, because the appeal is untimely, we dismiss
the appeal. 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
2
We are obligated to review our jurisdiction sua sponte in all
cases. Maksymchuk v. Frank, 987 F.2d 1072, 1075 (4th Cir. 1993).
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