FILED
United States Court of Appeals
Tenth Circuit
May 21, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, Nos. 09-3162 & 09-3218
v. (D. Kansas)
MAURICE TROTTER, also known as (D.C. No. 2:04-CR-20140-CM-1)
Mo,
Defendant - Appellant.
UNITED STATES OF AMERICA,
Plaintiff - Appellee, Nos. 09-3163 & 09-3219
v. (D. Kansas)
MARDELL TROTTER, also known as (D.C. No. 2:04-CR-20140-CM-2)
Juice, also known as Del,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
After examining the briefs and appellate records, this court has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
therefore ordered submitted without oral argument. 1
Maurice and Mardell Trotter “were tried together and convicted of
distribution and possession with intent to distribute significant quantities of
cocaine powder and crack cocaine as well as conspiracy to possess with intent to
distribute those substances.” United States v. Trotter, 483 F.3d 694, 697 (10th
Cir. 2007). On direct appeal, this court affirmed the Trotters’ convictions and
sentences. Id. at 703. The Supreme Court granted certiorari, vacated, and
remanded these cases for further consideration in light of Kimbrough v. United
States, 552 U.S. 85 (2007). 2 Trotter (Maurice) v. United States, 552 U.S. 1090
(2008); Trotter (Mardell) v. United States, 552 U.S. 1091 (2008). This court, in
turn, remanded the cases to the district court to clarify why it rejected the
Trotters’ requests for variances. United States v. Trotter (Maurice), 518 F.3d
773, 774 (10th Cir. 2008); United States v. Trotter (Mardell), 267 F. App’x 267,
267 (10th Cir. 2008). On July 11, 2008, the district court entered an order
1
The four separate appeals are consolidated for the purpose of this
disposition.
2
In Kimbrough v. United States, the Court held district courts have
discretion to vary from the Sentencing Guidelines on the basis “that the
crack/powder disparity yields a sentence ‘greater than necessary’ to achieve [18
U.S.C.] § 3553(a)’s purposes, even in a mine-run case.” 552 U.S. 85, 110 (2007).
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clarifying it understood at the time of sentencing that it had discretion to vary
from the Guidelines on the basis of the crack/powder cocaine disparity, and had
refused to vary on the basis the sentences it imposed on Maurice and Mardell
were appropriate under the facts of these particular cases. Eleven months later,
on June 11, 2009, the Trotters filed a notice of appeal and a motion for extension
of time to file appeal (appeal nos. 09-3162, -3163). When the district court
denied the Trotters’ motion to extend the time to file a notice of appeal, the
Trotters filed a second notice of appeal (appeal nos. 09-3218, -3219).
The United States has moved to dismiss these appeals as untimely. We
grant the government’s motion and hereby dismiss these appeals. Fed. R. App. P.
4(b)(1)(A); United States v. Garduno, 506 F.3d 1287, 1290-91 (10th Cir. 2007)
(holding that although Rule 4(b)(1)(A) is not jurisdictional, it is an “inflexible
claim processing rule” “assur[ing] relief to a party properly raising” timeliness
(quotation omitted)). In so doing, we note specifically that the district court did
not abuse its discretion in denying the Trotters’ motion to extend the time for
filing notices of appeal. The language of Fed. R. App. P. 4(b)(4) makes clear that
the district court could only extend the time for filing a notice of appeal for thirty
days beyond Rule 4(b)(1)’s deadline. Fed. R. App. P. 4(b)(4). Because the
Trotters’ notice of appeal was filed more than ten months after the expiration of
the time for filing a notice of appeal set out in Rule 4(b)(1), the district court
correctly denied the Trotters’ motion to extend.
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Because the Trotters’ notice of appeal was not timely filed, this court
grants the government’s motion and DISMISSES these appeals. 3
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
3
The Trotters assert this court should remand to the district court to
determine whether the Trotters’ counsel was ineffective in failing to file a timely
notice of appeal. They have not, however, cited a single case supporting such a
course of action in the face of an untimely notice of appeal. Instead, all of the
cases cited by the Trotters involve motions for relief from judgment pursuant to
28 U.S.C. § 2255.
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