UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4481
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LARRY KEVIN BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CR-03-21)
Submitted: July 13, 2005 Decided: August 9, 2005
Before WILKINSON, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Robert L. Flax, Richmond, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Michael J. Elston, Assistant
United States Attorney, Matthew C. Ackley, Special Assistant United
States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Following his guilty plea to possession of cocaine base
(crack) and possession of a firearm by a person previously
convicted of a felony, Larry Kevin Brown was sentenced to 51
months’ imprisonment. He then filed a number of letter motions in
the district court, which are the subject of this appeal. For the
reasons that follow, we dismiss Brown’s appeal from his conviction
and sentence, and affirm the district court’s orders denying his
motions to withdraw his guilty plea and to readdress his motion to
dismiss the indictment.
After he was arraigned on the federal charges, Brown
moved to dismiss the indictment, alleging that the delay between
his indictment and arraignment violated his Fifth and Sixth
Amendment rights. However, before this motion was addressed by the
district court, Brown entered his plea of guilty to the two charges
stated above. The district court accepted his plea and thereafter
sentenced Brown to 51 months’ imprisonment.
Brown sent a letter to the court asking for modification
of his sentence. The district court construed this letter as a
timely notice of appeal. Brown promptly communicated with the
court that he did not intend this document to be a notice of appeal
and the court withdrew the notice of appeal. One month after the
court granted his withdrawal of his notice of appeal, Brown sent
- 2 -
another letter stating that he wished to “withdraw the withdraw[]
of his appeal” and “continue on with the appeal process.”
We dismiss for lack of jurisdiction Brown’s attempt to
appeal from his criminal judgment and conviction. In a criminal
case, an appeal must be noted within ten days of the entry of
judgment unless the court extends the appeal period under Fed. R.
App. P. 4(b)(4). Here, the judgment and commitment order was
entered on April 22, 2004. Assuming that Brown’s letter of May 4,
2004 constituted a valid and timely notice of appeal,* Brown’s
letter requesting to withdraw the appeal resulted in the voluntary
dismissal of the appeal. See Fed. R. App. P. 42(a) (allowing
voluntary dismissal of appeal on motion of appellant any time prior
to Court of Appeals’ docketing of appeal). In a letter dated
June 13, 2004, Brown stated his intent and desire to continue with
his appeal. However, this statement of Brown’s intent to appeal
from the criminal judgment was too late. See Fed. R. App. P.
4(b)(1); Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264 (1978)
(appeal period mandatory and jurisdictional). Thus, this court
lacks jurisdiction over Brown’s attempt to appeal from the judgment
and commitment order entered on April 22, 2004.
Brown also appeals from the district court’s orders
denying his motion to withdraw his guilty plea and denying his
*
The government disputes that this letter was sufficient to
constitute a notice of appeal. Because the appeal--if properly
noted--was withdrawn, we need not resolve this issue.
- 3 -
motion in which he requested that the court address his motion to
dismiss the indictment which he filed prior to entering his guilty
plea. By failing to present any argument with respect to the
court’s denial of his motion to readdress the motion to dismiss,
Brown has waived review of that order. See Edwards v. City of
Goldboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999); Canady v. Crestar
Mortgage Corp., 109 F.3d 969, 973-74 (4th Cir. 1997).
The only remaining issue before the court is the
propriety of the district court’s order denying Brown’s motion to
withdraw his guilty plea. Counsel raises this issue in accordance
with Anders v. California, 386 U.S. 738, 744 (1967), asking this
court to review this portion of the appeal for any meritorious
issue.
Fed. R. Crim. P. 11(e) provides that after a defendant
has been sentenced, the district court has no authority to grant a
motion to withdraw a guilty plea. Fed. R. Crim. P. 11(e); United
States v. Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996) (decided under
former Rule 32(e)). After sentencing, the validity of the plea may
be challenged only on direct appeal or in a collateral attack such
as a motion pursuant to 28 U.S.C. § 2255 (2000). Because the
district court lacked authority to grant the motion, we find no
abuse of discretion in the denial of Brown’s motion to withdraw his
plea. See Wilson, 81 F.3d at 1305. As required by Anders, we have
reviewed the record and have found no meritorious issues with
- 4 -
respect to the district court’s denial of Brown’s motion to
withdraw his plea. Therefore, we affirm the denial of the motion.
In conclusion, we affirm the district court’s orders
denying Brown’s motions to withdraw his guilty plea and to
reinstate his motion to dismiss. We dismiss as untimely Brown’s
appeal from his Judgment and Commitment order. We further deny the
motions to relieve counsel and to substitute counsel and deny
Brown’s pro se motions to obtain the case file and records from his
trial attorney. This court requires that counsel inform his
client, in writing, of his right to petition the Supreme Court of
the United States for further review. If the client requests that
a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for leave
to withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client. 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 IN PART;
DISMISSED IN PART
- 5 -