eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Fourth Circuit
 2015-12

United States v. Albert Burgess , 623 F. App'x 613 ( 2015 )


Menu:
 
  •                             UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6932
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALBERT CHARLES BURGESS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.     Graham C. Mullen,
Senior District Judge. (1:09-cr-00017-GCM-DLH-1)
Submitted:   October 29, 2015             Decided:   December 2, 2015
Before NIEMEYER and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Albert Charles Burgess, Appellant Pro Se. Thomas Richard Ascik,
Assistant United States Attorney, Asheville, North Carolina,
Kimlani M. Ford, Cortney Randall, Edward R. Ryan, Assistant
United   States  Attorneys,   Charlotte, North  Carolina,   for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Albert Charles Burgess, Jr., seeks to appeal the district
court’s order denying his motion to reconsider its order denying
his Fed. R. Crim. P. 33 motion for a new trial.                                  In criminal
cases, the defendant must file his notice of appeal within 14
days       after    the    entry      of     judgment.               Fed.    R.     App.      P.
4(b)(1)(A)(i).
The    district      court    entered       its     order       denying      Burgess’
motion for a new trial on April 30, 2012.                             The 14-day appeal
period expired on May 14, 2012.                      See Fed. R. App. P. 26(a).
Burgess did not file his motion to reconsider until May 28,
2015. *
“[T]he       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).
However, the Supreme Court has held that a motion for rehearing
or   reconsideration           extends     the   time    for     filing      a     notice     of
appeal in a criminal case if the motion is filed before the
order      sought   to    be    reconsidered       becomes       final.           See    United
*
For the purpose of this appeal, we assume that the date
appearing on the motion to reconsider is the earliest date it
could have been properly delivered to prison officials for
mailing to the court.   See Houston v. Lack,
    487 U.S. 266
    , 276
(1988).
2
States v. Ibarra,
    502 U.S. 1
    , 4 n.2 (1991) (per curiam) (holding
that    would-be      appellants     who        file    a      timely     motion    for
reconsideration from a criminal judgment are entitled to a full
time   period    for    noticing     the       appeal       after   the   motion   for
reconsideration       has   been    decided);      United       States    v.    Dieter,
    429 U.S. 6
    , 7-8 (1976) (same); United States v. Christy,
    3 F.3d 765
    , 767 n.1 (4th Cir. 1993) (same).                    Because Burgess did not
timely file the motion to reconsider, the district court should
have denied the motion as untimely.                     We therefore affirm the
denial of the motion to reconsider on the ground that the motion
was untimely.
We dispense with oral argument because the facts and legal
contentions     are    adequately    presented         in    the    materials    before
this court and argument would not aid the decisional process.
AFFIRMED
3