United States v. McKelver

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-8029
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EZELL MCKELVER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Patrick Michael Duffy, District
Judge. (5:03-cr-00262-PMD)
Submitted: April 26, 2007 Decided: May 2, 2007
Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ezell McKelver, Appellant Pro Se. Leesa Washington, OFFICE OF THE
UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ezell McKelver appeals the district court’s margin order
denying McKelver’s Fed. R. Civ. P. 60(b) motion to reconsider his
August 2003 criminal judgment. McKelver filed neither a direct
appeal nor a 28 U.S.C. § 2255 (2000) motion, and he filed his Rule
60(b) motion more than three years after the district court entered
judgment on his conviction and sentence.
Although “the Federal Rules of Criminal Procedure do not
specifically provide for motions for reconsideration and prescribe
the time in which they must be filed,” Nilson Van & Storage Co. v.
Marsh, 755 F.2d 362, 364 (4th Cir. 1985), a motion for rehearing or
reconsideration in a criminal case extends the time for filing a
notice of appeal if the motion is filed before the order sought to
be reconsidered becomes final. See United States v. Ibarra, 502
U.S. 1, 4 n.2 (1991) (holding would-be appellant who files timely
motion for reconsideration from criminal judgment entitled to full
time period for noticing appeal after motion for reconsideration
has been decided); United States v. Dieter, 429 U.S. 6, 7-8 (1976)
(same); see also United States v. Christy, 3 F.3d 765, 767 n.1 (4th
Cir. 1993) (same).
McKelver submitted his Rule 60(b) motion well beyond the
applicable period of time provided to notice an appeal of the
judgment he sought the district court to reconsider. Accordingly,
because McKelver’s Rule 60(b) motion was untimely, we affirm the
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district court’s order denying the motion. See United States v.
McKelver, No. 5:03-cr-00262-PMD (D.S.C. Oct. 11, 2006). 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.
AFFIRMED
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