United States v. Proffitt

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-8034
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BILLY EUGENE PROFFITT, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:04-cr-00043-10)
Submitted: June 29, 2007 Decided: July 12, 2007
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Billy Eugene Proffitt, Jr., Appellant Pro Se. Jill Westmoreland
Ross, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Billy Eugene Proffitt, Jr., appeals the district court’s
orders construing his pleading as a notice of appeal, dismissing
the notice as untimely, and denying his motion for reconsideration.
Finding no reversible error, we affirm.
Proffitt pled guilty to and was sentenced to 190 months’
imprisonment for participation in a conspiracy to manufacture and
possess with intent to distribute methamphetamine. Proffitt’s
sentence was imposed on May 10, 2005, and we affirmed his
conviction and sentence on appeal. See United States v. Proffitt,
2006 WL 870586 (4th Cir. March 29, 2006)(No. 05-4532)
(unpublished).
On September 18, 2006, Proffitt filed a letter in the
district court requesting his appeal be “reentered.” The district
court issued an order in accordance with United States v. Emmanuel,
288 F.3d 644, 649 (4th Cir. 2002), giving Proffitt notice and
opportunity to respond before the court construed the letter as an
initial 28 U.S.C. § 2255 (2000) motion. Proffitt responded that
he was attempting to re-appeal his conviction to this court and
requested an extension of the appeal period. Thus, because
Proffitt objected to characterization of his pleading as a § 2255
motion, the district court properly filed the letter as a notice of
appeal as requested. See Emmanuel, 288 F.3d at 649.
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In a criminal case, a defendant must file his notice of appeal
within ten days after entry of the district court’s final judgment.
Fed. R. App. P. 4(b)(1)(A)(i). With or without a motion, the
district court may extend the time to file a notice of appeal for
an additional thirty days upon a finding of excusable neglect or
good cause. Fed. R. App. P. 4(b)(4); United States v. Reyes, 759
F.2d 351, 353 (4th Cir. 1985). When the notice of appeal is filed
more than thirty days after expiration of the appeal period,
neither the district court nor this court may grant an extension of
time to appeal. United States v. Schuchardt, 685 F.2d 901, 902
(4th Cir. 1982); see Fed. R. App. P. 26(b)(1). The appeal periods
established by Rule 4 are mandatory and jurisdictional. Browder v.
Dir., Dep’t of Corr., 434 U.S. 257, 264 (1978).
Proffitt’s filing on September 18, 2006, is well outside both
the appeal period and excusable neglect period. Though the
district court should have left the assessment of the timeliness of
Proffitt’s appeal to this court, we construe the court’s order as
implicity denying Proffitt’s request for an extension of time to
appeal his conviction.
Clearly, there is no basis for jurisdiction over any attempt
by Proffitt to re-appeal his 2005 conviction and sentence. Thus,
he was not entitled to an extension of time in which to note such
an appeal. Accordingly, we affirm the district court’s order
construing Proffitt’s filing as a notice of appeal and implicitly
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denying an extension of time to file it. We also affirm the
court’s order denying Proffitt’s motion for reconsideration. We
further deny as unnecessary Proffitt’s motion for a certificate of
appealability. 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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