UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6280
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM TERRENCE CROSS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:03-cr-00010-RBS-1)
Submitted: July 30, 2009 Decided: August 4, 2009
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
William Terrence Cross, Appellant Pro Se. Laura Pellatiro
Tayman, Assistant United States Attorney, Newport News,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
By judgment entered on August 1, 2003, William T.
Cross was convicted by a jury of witness tampering, 18 U.S.C.
§ 1512(b)(1) (2006), and retaliating against a witness, 18
U.S.C. § 1513(b)(2) (2006). On appeal, this court affirmed his
convictions, but vacated his sentence and remanded for
resentencing. United States v. Cross, 371 F.3d 176 (4th Cir.
2004). This court affirmed the sentence imposed at
resentencing. United States v. Cross, No. 04-5030, 2005 WL
3452041 (4th Cir. Dec. 16, 2005) (unpublished).
Seeking a second direct criminal appeal of his
convictions, Cross filed a notice of appeal at the earliest on
January 22, 2009, of the district court’s pre-trial April 15,
2003, order denying his motion to dismiss for lack of
jurisdiction. The Government has moved to dismiss the appeal
because it is untimely. Criminal defendants have ten days from
the entry of the judgment or order at issue to file a notice of
appeal. See Fed. R. App. P. 4(b).
While Cross’s appeal is clearly untimely, appeal
periods in criminal cases are not jurisdictional; rather, they
are “claim-processing rules” adopted by the Supreme Court that
do not affect this court’s subject-matter jurisdiction. See
Bowles v. Russell, 551 U.S. 205, 208-13 (2007); United States v.
Frias, 521 F.3d 229, 233 (2d Cir. 2008); United States v.
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Mitchell, 518 F.3d 740, 744 (10th Cir. 2008). Despite the fact
that the time limitations imposed by Rule 4(b) are not
jurisdictional, they “must be enforced by th[e] court when
properly invoked by the government.” Mitchell, 518 F.3d at 744.
Accordingly, we grant the Government’s motion to
dismiss the appeal as untimely filed. We deny Cross’s motions
for appointment of counsel and to dismiss for lack of subject
matter jurisdiction. 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.
DISMISSED
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