United States v. Leonard Oliver

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4376

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

LEONARD OLIVER,

Defendant – Appellant.

Appeal from the United States District Court for the District of South Carolina, at
Orangeburg. Margaret B. Seymour, Senior District Judge. (5:11-cr-00453-MBS-1)

Argued: September 15, 2017 Decided: December 20, 2017

Amended: December 20, 2017

Before GREGORY, Chief Judge, WYNN, and DIAZ, Circuit Judges.

Dismissed by published opinion. Chief Judge Gregory wrote the opinion, in which
Judge Wynn and Judge Diaz joined.

ARGUED: Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Columbia, South Carolina, for Appellant. John David Rowell, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Beth
Drake, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.
GREGORY, Chief Judge:

This case addresses our authority to dismiss sua sponte a criminal appeal as untimely

under Federal Rule of Appellate Procedure 4(b)(1)(A). Leonard Oliver appealed his

criminal conviction years after the Rule 4(b)(1)(A) filing deadline and nearly three months

after the district court denied his motion to vacate the conviction under 28 U.S.C. § 2255.

The Government failed to object to the appeal’s untimeliness. It is now for this Court to

decide whether to proceed to the merits.

We conclude that this Court has the authority to dismiss untimely criminal appeals

sua sponte but that it should exercise that authority only in extraordinary circumstances.

Given the procedural history of Oliver’s case, we find that such extraordinary

circumstances are present here and dismiss the appeal.

I.

Leonard Oliver pleaded guilty to attempt to possess with intent to distribute 500

grams or more of cocaine and was sentenced to ten years in prison, the mandatory minimum

sentence for the offense given his criminal record. See 21 U.S.C. §§ 841(b)(1)(B), 846. 1

The district court entered its judgment on September 30, 2011. The following year, Oliver

filed a timely pro se motion to vacate the conviction and sentence under 28 U.S.C. § 2255

1
Sections 841(b)(1)(B) and 846 provide that a person convicted of attempt to
possess with intent to distribute 500 grams or more of cocaine who had a prior, final felony
drug conviction at the time of the offense shall be sentenced to a minimum of ten years and
a maximum of life in prison. Oliver stipulated that he had one prior felony drug conviction
that had become final.
2
based on three ineffective-assistance-of-counsel claims. Oliver v. United States, No. 5:11-

435, 2014 WL 5506758, at *2–3 (D.S.C. Oct. 29, 2014). The district court ultimately

granted summary judgment in the Government’s favor in March 2015. See id. at *5; J.A.

9.

On June 18, 2015, Oliver filed a pro se notice of appeal, seeking to directly appeal

the same conviction and sentence from September 30, 2011. This Court assigned counsel,

who then filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). The

Government notified this Court that it would not file a response brief. Oliver was informed

of his right to file separately but did not do so.

II.

The time for filing an appeal from a criminal judgment is governed by Federal Rule

of Appellate Procedure 4(b). The Rule requires that “a defendant’s notice of appeal must

be filed in the district court within 14 days after . . . the entry of either the judgment or the

order being appealed.” Fed. R. App. P. 4(b)(1)(A).

Without question, Oliver’s appeal is years late. The judgment was entered on

September 30, 2011. To comply with Rule 4(b)(1)(A), Oliver needed to notice his appeal

by October 14, 2011. Oliver nonetheless filed the notice on June 18, 2015—three years

and eight months after the deadline. We have held that when a notice of appeal is filed

after the 4(b)(1)(A) deadline but within thirty days of that deadline, district courts should

determine whether the late filing was due to “excusable neglect or good cause” under Rule

4(b)(4). See United States v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985). Given that Oliver’s

3
notice was far more than thirty days late, however, Rule 4(b)(4)’s extension of time to file

for excusable neglect or good cause is no help to him.

We note at the outset that Oliver’s failure to adhere to Rule 4(b)(1)(A)’s filing

deadline does not deprive this Court of subject-matter jurisdiction. See United States v.

Urutyan, 564 F.3d 679, 685 (4th Cir. 2009). Rather, Rule 4(b)(1)(A) is an inflexible claim-

processing rule. See id. (explaining that Rule 4(b) is judicially created and “not

backstopped by any federal statutory deadline”); Hamer v. Neighborhood Hous. Servs. of

Chi., 138 S. Ct. 13, 17 (2017) (“A time limit not prescribed by Congress ranks as a

mandatory claim-processing rule, serving ‘to promote the orderly progress of litigation by

requiring that the parties take certain procedural steps at certain specified times.’” (quoting

Henderson v. Shinseki, 562 U.S. 428, 435 (2011))). When the Government promptly

invokes the rule in response to a late-filed criminal appeal, we must dismiss. See Eberhart

v. United States, 546 U.S. 12, 18 (2005) (per curiam) (discussing Rule 4(b)’s predecessor,

Federal Rule of Criminal Procedure 37); see also Rice v. Rivera, 617 F.3d 802, 810 (4th

Cir. 2010) (“Claim-processing rules . . . are to be rigidly applied when invoked by a

litigant.”). But, if the Government fails to object promptly to an appeal’s untimeliness in

either its merits brief or an earlier motion to dismiss, it generally forfeits the right to do so.

See Eberhart, 546 U.S. at 18; see also Kontrick v. Ryan, 540 U.S. 443, 458 (2004) (noting

that time bars generally must be raised in answer or responsive pleading); United States v.

Reyes-Santiago, 804 F.3d 453, 459 (1st Cir. 2015) (denying Government’s motion to

dismiss appeal under Rule 4(b)(1)(A) because motion was filed after merits brief and

Government had not previously raised untimeliness issue). Here, the Government did not

4
seek dismissal of Oliver’s appeal as untimely until well after the merits briefing, and it has

provided no justification for the delay. 2 We therefore have no obligation to raise Rule 4(b)

on our own motion or to dismiss the appeal in this case.

III.

The question then becomes whether we even have the authority to invoke Rule 4(b)

sua sponte. It is well-settled that “[c]ourts invested with the judicial power of the United

States have certain inherent authority to protect their proceedings and judgments in the

course of discharging their traditional responsibilities.” Degen v. United States, 517 U.S.

820, 823 (1996). Inherent powers are those “necessarily vested in courts to manage their

own affairs so as to achieve the orderly and expeditious disposition of cases.” United States

v. Moussaoui, 483 F.3d 220, 236 (4th Cir. 2007) (quoting Link v. Wabash R.R. Co., 370

U.S. 626, 630–31 (1962)). The Supreme Court has thus recognized federal courts’ inherent

authority to vacate a judgment procured by fraud, see Chambers v. NASCO, Inc., 501 U.S.

32, 44 (1991), to dismiss a lawsuit for failure to prosecute, see Link, 370 U.S. at 631–32,

to stay an action pending the outcome of parallel proceedings in another court, see Landis

v. N. Am. Co., 299 U.S. 248, 254 (1936), and to assess attorney’s fees against counsel, see

Roadway Express, Inc. v. Piper, 447 U.S. 752, 765 (1980), among other actions. The

2
Local Rule 27(f) appears to countenance such action, as it provides, “Motions to
dismiss based upon . . . procedural grounds may be filed at any time.” While we think
forfeiture is appropriate here, notwithstanding our Local Rule, we need not decide that
question because (as we explain) we have inherent authority to dismiss the appeal and
choose to exercise it.
5
source of such inherent power is not a particular rule or statute but “the very nature of the

court as an institution.” See United States v. Shaffer Equip. Co., 11 F.3d 450, 461–62 (4th

Cir. 1993).

Accordingly, we have held that a court may independently consider an issue not

raised by the parties when necessary to protect important institutional interests. In

Clodfelter v. Republic of Sudan, we affirmed a district court’s sua sponte invocation of a

res-judicata defense to avoid the unnecessary expenditure of judicial resources where the

defendant, a foreign sovereign, had not appeared in the case. 720 F.3d 199, 209–10 (4th

Cir. 2013). In Nasim v. Warden, Maryland House of Correction, we recognized that where

a complaint filed in forma pauperis under 28 U.S.C. § 1915(d) is untimely on its face, the

district court may raise a statute-of-limitations defense on its own motion. 64 F.3d 951,

953–54, 956 (4th Cir. 1995) (en banc). Because complaints filed under section 1915(d)

are more likely to be “frivolous, malicious, or repetitive,” we reasoned that such authority

was necessary to prevent the court’s docket from becoming clogged with meritless claims.

Id. at 953–54. And, in Hill v. Braxton, we concluded that a federal habeas court may also

consider a statute-of-limitations defense sua sponte because petitions brought under 28

U.S.C. § 2254 “implicate considerations of comity, federalism, and judicial efficiency to a

degree not present in ordinary civil actions.” 277 F.3d 701, 705–06 (4th Cir. 2002).

Like meritless complaints and untimely habeas petitions, late-filed criminal appeals

can implicate significant judicial interests. Most notably, they disrupt the finality of

criminal judgments. A criminal conviction becomes final at the end of the appellate

process—i.e., when the time for a direct appeal expires and the defendant has not noticed

6
an appeal or, if the defendant pursues an appeal, when the time for filing a petition for

certiorari expires. See United States v. Sanders, 247 F.3d 139, 142 (4th Cir. 2001). Once

final, that judgment is presumptively valid and can serve as the basis for future proceedings

and judgments. See United States v. Frady, 456 U.S. 152, 164–65 (1982). For example, a

final conviction—and only a final conviction—can be collaterally reviewed. See 28 U.S.C.

§ 2255(f). And, a final conviction may subject the defendant to sentencing enhancements

should he or she be convicted of another crime. See, e.g., 21 U.S.C. § 841(b)(1)(B)

(providing that person who commits enumerated drug offense shall be sentenced to no less

than five years in prison, but if that person “commits such a violation after a prior

conviction for a felony drug offense that has become final, such person shall be sentenced

to a term of imprisonment no less than 10 years”). Reviewing the merits of an appeal filed

after the Rule 4(b) deadline reopens the appellate process and thereby makes what was a

final judgment no longer final. When an appeal is filed so late that another judgment in

the interim has relied on the judgment being appealed, adjudication of the appeal could

unravel both the underlying judgment and the intervening judgment. And unraveling

intervening judgments simply creates further channels of litigation that would not have

been available but for the defendant’s delay. Courts clearly have a strong interest in

preserving valid final judgments and not expending judicial resources on cases that upset

those judgments.

Moreover, some untimely criminal appeals, if decided on the merits, would give the

defendant an undeserved second bite at the apple. The federal criminal justice system

prescribes a clear, sequential process for resolving criminal cases: The district court enters

7
its judgment; the defendant may challenge the judgment in an appeal to this Court and then

to the United States Supreme Court; and if unsuccessful, the defendant may challenge both

judgments on collateral review. See 18 U.S.C. § 3742; 28 U.S.C. § 2255. Filing a direct

appeal after pursuing collateral relief, as Oliver has done here, thwarts this process. And a

decision on the appeal’s merits would unfairly allow the defendant additional judicial

review not available to litigants who adhere to the rules of procedure. See Magwood v.

Patterson, 561 U.S. 320, 331 (2010) (holding that issuance of new judgment renews right

to collateral review). Needless to say, rewarding those who flout our rules threatens the

integrity of our judicial system. Courts thus have a strong interest in ensuring that litigants

do not gain additional opportunities for judicial review by circumventing the process.

Given the potential consequences of adjudicating untimely criminal appeals, we

conclude that the power to dismiss such appeals is necessary to protect the finality of

criminal judgments and the efficiency and fairness of our justice system. Therefore, we

hold that this Court has the inherent authority to invoke Rule 4(b)(1)(A) sua sponte.

The two other circuits that have squarely addressed the question agree. In United

States v. Mitchell, the Tenth Circuit held that it may raise the Rule 4(b) time bar sua sponte

because the rule “implicates important judicial interests beyond those of the parties.” 518

F.3d 740, 750 (10th Cir. 2008). The court noted that Rule 4(b) “plays an important role in

ensuring finality of a criminal conviction” and thus serves both “societal interests and the

interests of judicial administration by minimizing uncertainty and waste of judicial

resources.” Id. Relying on Mitchell’s reasoning, the Sixth Circuit held the same. United

States v. Gaytan-Garza, 652 F.3d 680, 681 (6th Cir. 2011).

8
 IV.

Having recognized that we have the inherent power to dismiss untimely criminal

appeals sua sponte, we now turn to whether we should exercise it. A court’s exercise of

inherent power must be “a reasonable response to the problems and needs that provoke it.”

Degen, 517 U.S. at 823–24. Indeed, “inherent power is limited by the necessity giving rise

to its exercise.” Id. at 829. The necessity here is the need to protect the finality of criminal

judgments and maintain the efficiency and fairness of the judicial process. Because

adjudicating a late-filed criminal appeal necessarily disrupts the finality of the underlying

judgment and thus jeopardizes at least the fairness of our procedures, our power to dismiss

such appeals on our own motion extends to all appeals filed after the Rule 4(b)(1)(A)

deadline.

But “[j]ust because” we have the inherent authority to act “does not mean that it is

appropriate to use that power in every case.” Dietz v. Bouldin, 136 S. Ct. 1885, 1893

(2016). This is particularly true where, as here, the exercise of inherent power involves

raising an issue that the parties have forfeited or waived and dismissing the case on that

ground. See Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653–54 (4th Cir. 2006); Shaffer

Equip., 11 F.3d at 462. In our adversarial system, “we rely on the parties to frame the

issues for decision and assign to courts the role of neutral arbiter of matters the parties

present.” Greenlaw v. United States, 554 U.S. 237, 243 (2008). The importance of

preserving this system and its benefits weighs heavily against considering Rule 4(b) sua

sponte.

9
 “Courts do not, or should not, sally forth each day looking for wrongs to right.” Id.

at 244 (internal alterations and citation omitted); see also Carducci v. Regan, 714 F.2d 171,

177 (D.C. Cir. 1983) (Scalia, J.) (“[A]ppellate courts do not sit as self-directed boards of

legal inquiry and research, but essentially as arbiters of legal questions presented and

argued by the parties before them.”). And for good reason—our adversarial system of

justice is premised on “the well-tested principle” that party presentation is the most

effective method for reaching the best outcome in each case. Penson v. Ohio, 488 U.S. 75,

84 (1988); Alderman v. United States, 394 U.S. 165, 183–84 (1969); see also Herring v.

New York, 422 U.S. 853, 862 (1975) (“[P]artisan advocacy on both sides of a case will best

promote the ultimate objective that the guilty be convicted and the innocent go free.”).

Such adversary proceedings not only increase public confidence in the justice system, see

United States v. Nixon, 418 U.S. 683, 709 (1974), but they implicitly recognize that “parties

know what is best for them and are responsible for advancing the facts and arguments

entitling them to relief,” Greenlaw, 554 U.S. at 244 (citation omitted). See also id.

(“Counsel almost always know a great deal more about their cases than we do, and this

must be particularly true of counsel for the United States, the richest, most powerful, and

best represented litigant to appear before us.” (citation omitted)).

Issues “waivable by the inaction of a party,” such as the untimeliness of a criminal

appeal, “bear[] the hallmarks of our adversarial system.” Eriline, 440 F.3d at 654. Indeed,

the principle that parties forfeit an argument if they fail to timely raise it encourages each

side to actively participate in all stages of the litigation. When the court raises a forfeited

issue sua sponte, it undermines the principle of party presentation and risks becoming a

10
third advocate. See Arizona v. California, 530 U.S. 392, 412–13 (2000). Habitual sua

sponte consideration of a forfeited issue disincentivizes vigorous advocacy and thereby

chips away at the foundation of our justice system.

For these reasons, we have warned that courts should not invoke a statute of

limitations sua sponte unless proceeding to the merits would significantly implicate the

efficiency and integrity of the judicial process. In Eriline Co. S.A. v. Johnson, the plaintiffs

filed their complaint nearly a year after the relevant statute of limitations had run. 440 F.3d

at 650–51. Because certain defendants failed to respond, the plaintiffs moved for default

judgment. Id. at 651. Finding that the case was time-barred, the district court raised the

statute-of-limitations defense sua sponte and dismissed the complaint in its entirety. Id.

We held on appeal that the dismissal was an unjustified departure from the general rule

that a defendant must either timely raise a statute of limitations or forfeit its protection. Id.

at 657. A statute of limitations, we reasoned, “primarily serves only defendants” and any

interest that a court possesses in its enforcement “ordinarily falls short of that necessary to

outweigh the benefits derived from adhering to the adversarial process.” Id. at 655.

We find our reasoning in Eriline instructive here. Eriline made clear that courts are

not to intervene in the adversarial process solely because a party filed late. See 440 F.3d

at 655–57. Rather, the defendant holds the responsibility of raising a statute of limitations,

as it is the defendant who primarily benefits from its invocation. Id. at 653–54. Only when

consideration of a statute of limitations primarily benefits the judicial system may the court

raise that time bar on its own motion. Id. at 655–56. Indeed, we recognized in Eriline that

a court may raise a statute of limitations sua sponte in only two narrow circumstances:

11
untimely complaints filed in forma pauperis under 28 U.S.C. § 1915 and untimely habeas

petitions filed under 28 U.S.C. § 2254. Id. at 655–57 (discussing Nasim, 64 F.3d 951, and

Hill, 277 F.3d 701). These cases are exceptional in that they “implicate important judicial

and public concerns not present in the circumstances of ordinary civil litigation”—namely,

preventing the court’s docket from becoming clogged with meritless claims and

considerations of comity, federalism, and judicial efficiency. Id. at 656.

Our decision in Eriline thus struck a balance between courts’ interest in maintaining

the adversarial process and the institutional interests implicated by these two types of

filings. When dismissal primarily benefits the defendant, the interest in preserving our

adversarial system is paramount, and the court should not consider the statute of limitations

sua sponte. See id. at 655. But, in some cases, deciding a complaint or petition on the

merits implicates important judicial interests to such an extent that the court’s interest in

dismissing the case outweighs its interest in adhering to the adversarial process. See id. at

655–56. In those cases, and only those cases, the court may raise the statute of limitations

on its own motion. See id. at 657.

The same weighing of interests applies to determining whether or when we should

invoke Rule 4(b)(1)(A). Here, the Government holds the responsibility of raising the

untimeliness of a criminal appeal, and generally, the Government enjoys the greatest

benefit when criminal appeals are dismissed on untimeliness grounds. If the Government

neglects to object to a late-filed criminal appeal, we must not rush to its aid. Indeed, we

should assume that the Government wishes the court to decide the case on the merits. See

Greenlaw, 554 U.S. at 244. There are, however, some circumstances in which this Court’s

12
interests in dismissing an untimely criminal appeal supersede the interests of the parties

and the principle of party presentation. Consistent with our decision in Eriline, we think

that in those instances, and only those instances, this Court should exercise its inherent

authority to consider Rule 4(b)’s filing deadline sua sponte.

Two circumstances in particular threaten the judiciary’s institutional interests to

such an extent that intervening in the adversarial process by raising a forfeited or waived

Rule 4(b) defense is necessary. The first is an appeal from a final judgment filed so late

that in the interim, a court has issued a subsequent judgment, such as a sentence

enhancement, in reliance on the judgment appealed. As we discussed above, adjudication

of such an appeal on the merits has a domino effect—it disrupts not only the judgment

appealed, but also the subsequent judgment. And disrupting the latter judgment would

create new grounds to challenge that judgment, grounds that would not exist but for the

defendant’s untimely appeal.

The following hypothetical best illustrates the problem: An individual is convicted

and sentenced for a felony drug offense and does not file an appeal within the time provided

by Rule 4(b). That judgment becomes final when the Rule 4(b) filing period expires. The

same individual later commits and is convicted of attempt to possess with intent to

distribute 500 grams or more of cocaine under 21 U.S.C. §§ 841(b)(1)(B) and 846—the

offense in Oliver’s conviction. Section 841(b)(1)(B) provides, “If any person commits

such a violation after a prior conviction for a felony drug offense has become final, such

person shall be sentenced to a term of imprisonment which may not be less than 10 years.”

21 U.S.C. § 841(b)(1)(B) (emphasis added). Thus, the court, relying on the finality of the

13
first felony drug conviction, sentences this individual to ten years in prison for the cocaine

offense. Then the individual, now serving ten years in prison, appeals the first felony drug

conviction, and the Government does not object to the appeal’s untimeliness. If this Court

proceeds to the merits of that appeal, it reopens the underlying felony drug conviction,

making that judgment no longer final. And because that conviction is no longer final, the

ten-year sentence issued in reliance on it becomes subject to challenge. Although our

interest in respecting the adversarial process is substantial, opening the courthouse doors

to these otherwise unavailable claims would waste judicial resources and allow those who

disregard Rule 4(b)’s filing deadline to free themselves of valid and binding judgments.

The second circumstance that warrants sua sponte invocation of Rule 4(b) is a direct

appeal filed after the defendant has completed collateral review of the same judgment.

Such appeals circumvent the established process that our criminal justice system prescribes

for resolving cases. A defendant can seek collateral review of a criminal judgment—i.e.,

file a petition for habeas corpus—only after that judgment has become final. Thus, in

collaterally reviewing a criminal judgment, a district court relies on the fact that the

defendant has exhausted all opportunities for direct review. See Frady, 456 U.S. at 164–

65. Reviewing an appeal post-collateral review not only nullifies the district court’s efforts

in adjudicating the habeas petition, but also restarts the process such that the defendant

gains a second opportunity for collateral review. See Magwood, 561 U.S. at 331. As

important as the principle of party presentation is, we cannot allow litigants to turn the

review process on its head and obtain additional judicial review by disregarding Rule 4(b)’s

mandate.

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 Accordingly, we hold that, as a general rule, this Court should not invoke Rule

4(b)(1)(A) to dismiss an untimely criminal appeal when the Government has forfeited or

waived its objection. The untimeliness of a criminal appeal does not by itself justify

contravening the principle of party presentation so basic to our adversarial system. We

recognize, however, that certain cases implicate judicial interests to such an extent that not

intervening would harm the court as an institution. Specifically, appeals filed after a

subsequent judgment has relied on the judgment appealed or after the defendant has

pursued collateral review of the judgment threaten the efficiency and integrity of our justice

system to such an extent that this Court’s interest in dismissing them outweighs its interest

in adhering to the adversarial process. In these cases, the Court may exercise its inherent

power to raise Rule 4(b)(1)(A) sua sponte. 3

The parties focused much of their supplemental briefing in this case on the Tenth

Circuit’s opinion in Mitchell, 518 F.3d 740. There, the Tenth Circuit held that courts may

raise Rule 4(b) sua sponte when the delay in filing the appeal has been inordinate and

judicial resources and administration are implicated. Id. at 750. We, however, find

Mitchell’s test untenable. As the dissent in that case noted, “inordinate” delay is an

inherently ambiguous standard and begs the question of where to draw the line between

appeals that are late and those that are too late. Id. at 754 (Lucero, J., dissenting).

Similarly, it is unclear to us how courts should measure whether a case implicates judicial

3
We do not foreclose the possibility that additional circumstances might necessitate
sua sponte consideration of Rule 4(b)(1)(A). Such an exercise of inherent power, of course,
would need to be tethered to the principles articulated herein. Given the weighty
importance of preserving the adversarial process, we think such cases will be rare.
15
resources and administration to the extent that it should be dismissed without wading knee-

deep in the merits. And, assuming we did identify those resource-intensive cases, such a

standard would have us dismiss cases that raise numerous potentially meritorious issues

yet adjudicate cases that raise fewer issues or issues we can dispense with more easily. We

think the better approach is to refrain from considering Rule 4(b) sua sponte unless an

intervening judgment or collateral-review proceeding has relied on the judgment appealed.

V.

In this case, Oliver filed his notice of appeal more than three years and eight months

after the district court entered the underlying judgment. Because Oliver chose not to appeal

within the time provided by Rule 4(b)(1)(A), that judgment became final. Thereafter,

Oliver pursued collateral review of the judgment under 28 U.S.C. § 2255. The district

court that adjudicated his habeas petition proceeded on the valid presumption that the

conviction was no longer appealable and concluded that his habeas claims were without

merit. See Oliver, 2014 WL 5506758, at *5; J.A. 9.

Having been unsuccessful in obtaining relief on collateral review, Oliver now asks

this Court to reopen his original conviction and conduct our own review. This we will not

do. Oliver’s appeal presents one of the rare situations we identified, supra at 14, in which

our interest in the efficiency and integrity of the criminal justice system outweighs our

interest in adhering to the principle of party presentation. Accordingly, we exercise our

authority to invoke Rule 4(b)(1)(A) sua sponte, and because there is no question that

Oliver’s appeal is untimely, we dismiss.

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 VI.

For the foregoing reasons, we dismiss Oliver’s appeal as untimely under Federal

Rule of Appellate Procedure 4(b)(1)(A).

DISMISSED

17