UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4165
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLYLE LAVAR ALVAREZ, a/k/a Chico,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Irene M. Keeley, Chief
District Judge. (3:05-cr-00075-WCB)
Submitted: August 3, 2007 Decided: August 15, 2007
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William C. Gallagher, CASSIDY, MYERS, COGAN & VOEGELIN, L.C.,
Wheeling, West Virginia, for Appellant. Sharon L. Potter, United
States Attorney, Thomas O. Mucklow, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlyle Lavar Alvarez appeals from the district court’s
order denying his motion for an extension of time to file a notice
of appeal of his criminal judgment. We previously dismissed
Alvarez’s direct appeal as untimely filed. Counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that, in his opinion, there are no meritorious issues for
appeal, but raising the issue of whether the district court abused
its discretion in failing to find excusable neglect in denying
Alvarez’s motion to file a notice of appeal out of time. We affirm.
Alvarez’s judgment was entered on August 1, 2006. The
time period for Alvarez to file a notice of appeal expired on
August 15, 2006. See Fed. R. App. P. 4(b), 26(a). Alvarez filed
his pro se notice of appeal at the earliest on October 28, 2006.
He filed a motion for extension of time to file notice of appeal on
December 13, 2006, arguing that his attorney did not file an appeal
as he requested. The court denied the motion by order entered
December 21, 2006.
The district court may grant an extension of time up to
thirty days after the expiration of the appeal period, if there is
a finding of good cause or excusable neglect. Fed. R. App. P.
4(b)(4). The district court only has authority, however, “to
extend the time to file a notice of appeal for a period not to
exceed 30 days from the expiration of the time otherwise prescribed
- 2 -
by this Rule 4(b).” Fed. R. App. P. 4(b)(4). The time periods
presented in Rule 4(b) are mandatory and jurisdictional. United
States v. Raynor, 939 F.2d 191, 196 (4th Cir. 1991). As the notice
of appeal and motion for extension of time in this case were filed
well outside the excusable neglect period provided in Rule 4(b)(4),
the district court had no jurisdiction to grant the extension.
Accordingly, we affirm the district court’s order denying
Alvarez’s motion for an extension of time to file his notice of
appeal.* This court requires that counsel inform Alvarez, in
writing, of the right to petition the Supreme Court of the United
States for further review. If Alvarez 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 Alvarez. 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 his Anders brief, counsel also raises substantive claims
pertaining to Alvarez’s conviction and sentence. On review of an
Anders appeal, we typically review the record in the case for any
meritorious issues. Having already dismissed Alvarez’s appeal as
untimely filed and finding no error in the court’s order denying
his motion to extend time to file a notice of appeal, in this case,
we do not reach the merits of Alvarez’s substantive claims.
- 3 -