United States v. Elliott , 86 F. App'x 585 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7519
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAMON EMANUEL ELLIOTT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CR-
97-53-PJM)
Submitted: December 18, 2003 Decided: February 3, 2004
Before LUTTIG, SHEDD, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Damon Emanuel Elliott, Appellant Pro Se. Daphene Rose McFerren,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Damon Emanuel Elliott was convicted of attempted
aggravated sexual abuse and was sentenced to 189 months’
imprisonment by judgment entered on December 1, 1997. This court
affirmed the district court’s judgment. See United States v.
Elliott, No. 97-4756, 1998 WL 462801 (4th Cir. Aug. 5, 1998)
(unpublished). Seeking a second direct criminal appeal pursuant to
18 U.S.C. § 3742 (2000), Elliott filed a notice of appeal on
September 11, 2003. We lack jurisdiction to consider the merits of
the appeal, however, because it is untimely. Criminal defendants
have ten days from the entry of the judgment or order at issue to
file a notice of appeal. See Fed. R. App. P. 4(b). The appeal
periods established by Rule 4 are mandatory and jurisdictional.
Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264 (1978). Because
Elliott filed his notice of appeal over five years outside the
appeal period, we lack jurisdiction to consider the merits of the
appeal.
To the extent that Elliott seeks to appeal the district
court’s April 6, 2000, denial of his 28 U.S.C. § 2255 (2000)
motion, we deny a certificate of appealability and dismiss the
appeal for lack of jurisdiction because Elliott’s notice of appeal
is also untimely as to that order. Parties are accorded sixty days
after entry of the district court’s final judgment or order to note
an appeal, Fed. R. App. 4(a)(1), unless the district court extends
- 2 -
the appeal period under Fed. R. App. 4(a)(5) or reopens the appeal
period under Fed. R. App. 4(a)(6). Furthermore, this court has
previously reviewed that order on appeal, denied a certificate of
appealability, and dismissed the appeal. See United States v.
Elliott, No. 00-6660, 2000 WL 1124559 (4th Cir. Aug. 9, 2000)
(unpublished).
We dismiss this appeal for lack of jurisdiction. 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 -