United States v. Carlos Perry , 595 F. App'x 252 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4600
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS PERRY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:14-cr-00003-JPJ-PMS-1)
Submitted: February 18, 2015 Decided: March 4, 2015
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Dana R. Cormier, DANA R. CORMIER, PLC, Staunton, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, Jennifer
R. Bockhorst, Assistant United States Attorney, Abingdon,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos Perry seeks to appeal his conviction and
sentence. In criminal cases, the defendant must file the notice
of appeal within fourteen days after the entry of judgment.
Fed. R. App. P. 4(b)(1)(A). With or without a motion, upon a
showing of excusable neglect or good cause, the district court
may grant an extension of up to thirty days to file a notice of
appeal. Fed. R. App. P. 4(b)(4); United States v. Reyes, 759
F.2d 351, 353 (4th Cir. 1985). Although the time limitations
imposed by Rule 4(b) are not jurisdictional, they “must be
enforced by th[e] court when properly invoked by the
government.” United States v. Mitchell, 518 F.3d 740, 744 (10th
Cir. 2008). If the government notes its objection for the first
time in its merits brief to the appellate court or earlier in
the proceedings, the objection is considered properly invoked.
United States v. Watson, 623 F.3d 542, 546 (8th Cir. 2010).
Here, the district court entered judgment on May 16,
2014. Perry filed his notice of appeal on July 25, 2014. 1 The
government properly invoked its objection to Perry’s late filing
by stating the objection in its brief to this court. Because
1
Perry included a certificate of service with his notice of
appeal stating that he deposited the documents in the prison
mailing system on July 25, 2014. Under the “prison mailbox
rule,” July 25 is considered the date of filing. Houston v.
Lack, 487 U.S. 266, 276 (1988).
2
Perry did not file a notice of appeal that was timely or within
the time period during which the district court had the
authority to extend the appeal period, Fed. R. App. P. 4(b)(4), 2
and the government validly objected, we dismiss Perry’s appeal.
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.
DISMISSED
2
We do not consider the propriety of the district court’s
denial of Perry’s pro se motion to extend the time for filing a
notice of appeal, because Perry did not file a notice of appeal
of that order.
3