United States v. Marc Fleurival ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-6281
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARC ANDRE FLEURIVAL, a/k/a Real, a/k/a Mark Andre Fleurival,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at
Harrisonburg. Glen E. Conrad, Senior District Judge. (5:06-cr-00041-GEC-4)
Submitted: June 24, 2021 Decided: June 28, 2021
Before KING and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed in part, dismissed in part by unpublished per curiam opinion.
Marc Andre Fleurival, Appellant Pro Se. Laura Day Rottenborn, OFFICE OF THE
UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marc Andre Fleurival appeals from the district court’s order granting his motion for
a sentence reduction under 18 U.S.C. § 3582(c)(1)(B), and § 404(b) of the First Step Act
of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5222; reducing his sentence of imprisonment
to time served; and reducing his term of supervised release to eight years. Fleurival also
seeks to appeal from the August 31, 2007, criminal judgment. For the reasons that follow,
we affirm in part and dismiss in part.
On appeal, Fleurival pursues arguments that he did not present in his First Step Act
motion, and most of those arguments attack his conviction. However, we conclude that
Fleurival may not challenge his conviction in an appeal from the district court’s order
granting his First Step Act motion. Insofar as Fleurival’s appellate arguments might be
construed to object to the eight-year term of supervised release, we emphasize that
Fleurival asked the district court to impose that term. Consequently, Fleurival may not
now fault the district court for doing so. See United States v. Day, 700 F.3d 713, 727 n.1
(4th Cir. 2012) (explaining invited error doctrine). Because Fleurival has not demonstrated
that the district court abused its discretion in granting his First Step Act motion, we affirm
the district court’s order. See United States v. Collington, 995 F.3d 347, 358 (4th Cir. 2021)
(providing standard of review).
Turning to Fleurival’s attempt to appeal from the August 31, 2007, criminal
judgment, we conclude that Fleurival’s appeal is untimely. See Fed. R. App. P. 4(b)(1)(A).
And we exercise our discretion to sua sponte dismiss Fleurival’s untimely appeal from the
criminal judgment. See United States v. Oliver, 878 F.3d 120, 129 (4th Cir. 2017)
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(explaining that appellate court may, in certain circumstances, sua sponte dismiss untimely
criminal appeal).
We thus affirm in part and dismiss in part. 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 IN PART;
DISMISSED IN PART
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