United States v. Cyrus

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4895
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LUTHER JOE CYRUS, a/k/a Joe Cyrus,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:03-cr-00106)
Submitted: April 23, 2007 Decided: May 18, 2007
Before WILKINSON, WILLIAMS, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
John M. Ervin, III, ERVIN LAW FIRM, Darlington, South Carolina, for
Appellant. Rose Mary Parham, Assistant United States Attorney,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luther Joe Cyrus seeks to appeal his resentencing
following this court’s remand. See United States v. Cyrus, No.
04-4625, 2005 WL 1220856 (4th Cir. May 24, 2005) (unpublished). In
criminal cases, the defendant must file the notice of appeal within
ten days after the entry of judgment. Fed. R. App. P. 4(b)(1)(A).
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).
Because the district court entered judgment on March 21,
2006, Cyrus had until April 4, 2006, in which to note a timely
appeal. Counsel moved for an extension of time to note an appeal
on April 5, 2006. The district court granted the motion for good
cause shown on August 16, 2006. However, in accordance with Fed.
R. App. P. 4(b)(4), the court lacked authority to extend the appeal
period beyond May 4, 2006. Thus, Cyrus’s notice of appeal, filed
on August 22, 2006, was untimely. Accordingly, we dismiss the
appeal.
This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the United
States for further review. If the client requests that a petition
be filed, but counsel believes that such a petition would be
frivolous, then counsel may move this court for leave to withdraw
- 2 -
from representation. Counsel’s motion must state that a copy
thereof was served on the client. 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
- 3 -