United States v. Harmon , 26 F. App'x 363 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4507
MICHAEL TRACY HARMON, a/k/a
Mike, a/k/a Mickey,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4508
MICHAEL TRACY HARMON, a/k/a
Mike, a/k/a Mickey,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-99-23)
Submitted: December 19, 2001
Decided: February 12, 2002
Before LUTTIG and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
No. 00-4507 dismissed and No. 01-4508 affirmed by unpublished per
curiam opinion.
2 UNITED STATES v. HARMON
COUNSEL
Matthew D. Pethybridge, CARR & PORTER, L.L.C., Portsmouth,
Virginia, for Appellant. Paul J. McNulty, United States Attorney, Fer-
nando Groene, Assistant United States Attorney, Norfolk, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In this consolidated appeal, Michael Tracy Harmon appeals from
the district court’s order denying his motion to reinstate his appellate
rights. Harmon also seeks to appeal his criminal conviction entered
on his guilty plea to possession with intent to distribute methamphet-
amine and a related conspiracy charge. See 21 U.S.C. § 841(a)(1)
(1994); 21 U.S.C. § 846 (1994). In his motion to reinstate his appel-
late rights, Harmon alleged that despite the fact that he instructed his
attorney to file a timely notice of appeal, no such notice was filed. See
United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993). Harmon’s
direct criminal appeal is pending as a result of Harmon’s pro se filing
of a document construed as a notice of appeal nearly eleven months
after entry of the district court’s judgment in a criminal case.
With respect to the district court’s denial of Harmon’s motion to
reinstate his appellate rights, the district court held an evidentiary
hearing to resolve the factual issues surrounding Harmon’s post-
judgment instructions to his attorney and found that Harmon and his
attorney agreed that an appeal would not be filed. We have reviewed
the record and the district court’s opinion and find no reversible error.
See United States v. Cheek, 94 F.3d 136, 140 (4th Cir. 1996) (citing
Fed. R. Civ. P. 52(a)). Accordingly, we affirm on the reasoning of the
district court. United States v. Harmon, No. CR-99-23 (E.D. Va. Apr.
25, 2001).
UNITED STATES v. HARMON 3
Turning to Harmon’s direct criminal appeal, on the finding of the
district court that Harmon did not instruct his attorney to file a timely
notice of appeal, we are constrained to dismiss the appeal for lack of
jurisdiction because Harmon’s pro se notice of appeal was not timely
filed.
Parties to a criminal proceeding are accorded ten days after entry
of the district court’s final judgment to note an appeal, see Fed. R.
App. P. 4(b)(1)(A), unless the district court extends the appeal period
under Fed. R. App. P. 4(b)(4). This appeal period is "mandatory and
jurisdictional." Browder v. Director, Dep’t of Corrections, 434 U.S.
257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220,
229 (1960)).
The district court’s judgment was entered on the docket on August
9, 1999. Harmon’s notice of appeal was filed on June 30, 2000.
Because Harmon failed to file a timely notice of appeal or to obtain
an extension of the appeal period, we dismiss the appeal. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
No. 00-4507 - DISMISSED
No. 01-4508 - AFFIRMED