Opinion
No. 09-4501.
Submitted: September 24, 2009.
Decided: October 15, 2009.
Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, Chief District Judge. (2:07-cr-01120-DCN-1).
Dorwin J. Wolfe, Elkins, West Virginia, for Appellant. W. Walter Wilkins, United States Attorney, Matthew J. Modica, Assistant. United States Attorney, Charleston, South Carolina, for Appellee.
Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
Michael Charles Jones seeks to appeal the amended judgment of conviction. In criminal cases, the defendant must file the notice of appeal within ten 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).
The district court entered judgment on April 2, 2009, and a timely notice of appeal should have been filed by April 16, 2009. Assuming the date the notice was signed is the filing date, Jones' notice of appeal was filed on April 20, 2009. See Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). The district court denied Jones' motion to file a notice of appeal out of time, finding no good cause or excusable neglect.
On appeal, the United States notes the appeal is untimely and should be dismissed. Because Jones 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 adequately presented in the materials before the court and argument would not aid the decisional process.
Jones did not file a notice of appeal from the district court order denying his motion to file a late notice of appeal from the amended criminal judgment. Thus, this court will not review whether the district court abused its discretion in denying the motion.
DISMISSED.