United States v. Thomas

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 02-4378 MARION THOMAS, Defendant-Appellant.  Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Richard L. Voorhees, District Judge. (CR-90-215-V) Submitted: October 10, 2002 Decided: October 18, 2002 Before WILLIAMS, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. COUNSEL Aaron E. Michel, Charlotte, North Carolina, for Appellant. Robert J. Conrad, Jr., United States Attorney, Thomas R. Ascik, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). 2 UNITED STATES v. THOMAS OPINION PER CURIAM: Marion Thomas appeals the district court’s revocation of his super- vised release and resulting twenty-four month sentence. On appeal, Thomas identifies no error in the revocation proceeding, but instead challenges the legality of his original conviction and sentence. Find- ing no error, we affirm. Parties in criminal cases are accorded ten days after the entry of the district court’s final judgment or order to note an appeal. See Fed. R. App. P. 4(b). This appeal period is "mandatory and jurisdictional." Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)). Because Thomas did not appeal his original conviction and sentence, this court does not have jurisdiction to review it more than ten years after its imposition. However, because Thomas filed a timely notice of appeal as to his revocation proceeding, we have jurisdiction to review that proceeding. Nonetheless, because Thomas’s sole argument on appeal is not subject to our consideration, we must reject it. Moreover, even if we were to assume the existence of jurisdiction, we would find it fore- closed by our decision in United States v. Pratt, 239 F.3d 640, 647 (4th Cir. 2001). Accordingly, we affirm Thomas’s conviction and sentence imposed pursuant to his revocation proceeding. We deny his motion to strike the Government’s brief in part. 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. AFFIRMED