United States v. Antoine Gracius ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4728
ANTOINE GRACIUS, a/k/a Antoine
Gracias, a/k/a Julian,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Salisbury.
William L. Osteen, District Judge.
(CR-97-114)
Submitted: September 30, 1999
Decided: November 2, 1999
Before WILKINS, WILLIAMS, and KING, Circuit Judges.
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Dismissed by unpublished per curiam opinion.
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COUNSEL
Joseph T. Grunkemeyer, Cary, North Carolina, for Appellant. Walter
C. Holton, Jr., United States Attorney, Clifton T. Barrett, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Antoine Gracius entered a guilty plea to a superseding indictment
charging that he conspired to distribute cocaine base ("crack"), see 21
U.S.C. § 846 (1994), and was sentenced to a term of 168 months
imprisonment. The district court informed him after imposing the sen-
tence that, if he wished to appeal, his notice of appeal must be filed
within ten days of judgment. The judgment was entered on June 23,
1998. Gracius did not timely appeal. On September 28, 1998, he
moved for leave to file an untimely notice of appeal and for appoint-
ment of counsel, alleging that he had asked his attorney to file an
appeal immediately after sentencing but that the attorney had failed
to do so. The notice of appeal was forwarded to this court although
the motions were still pending. On remand for a ruling on the
motions, the district court granted both motions, finding that the fail-
ure to file a timely appeal was due to excusable neglect, and giving
Gracius thirty days from the date of the order to note an appeal. Gra-
cius filed a new notice of appeal within ten days of the order.
Rule 4(b) of the Federal Rules of Appellate Procedure requires that
a notice of appeal be filed within ten days of judgment. The district
court may extend the time for filing a notice of appeal for thirty addi-
tional days with or without a motion upon a showing of excusable
neglect. The district court may not otherwise extend the time for filing
a notice of appeal. See United States v. Reyes , 759 F.2d 351, 353 (4th
Cir. 1985); United States v. Schuchardt, 685 F.2d 901, 902 (4th Cir.
1982). Because the potential extension period had already expired
when Gracius filed his motion in September 1998, the district court
was without authority to grant an extension of time, even on a show-
ing of excusable neglect.* See Fed. R. App. P. 4(b)(4); United States
v. Raynor, 939 F.2d 191, 197 (4th Cir. 1991). Consequently, Graci-
us's new notice of appeal was ineffective.
We therefore dismiss the appeal for lack of jurisdiction. We dis-
pense with oral argument because the facts and legal contentions are
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*At this point, Gracius's remedy is to file a motion pursuant to 28
U.S.C.A. § 2255 (West Supp. 1999).
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adequately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED
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