Case: 16-17164 Date Filed: 04/27/2018 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17164
Non-Argument Calendar
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D.C. Docket No. 8:14-cr-00184-JDW-TBM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL LEE SCHMIDT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 27, 2018)
Before MARCUS, ROSENBAUM, and NEWSOM, Circuit Judges.
PER CURIAM:
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Michael Lee Schmidt appeals his 36-month sentence for conspiracy to
possess with intent to distribute methylone. On appeal, he asserts (1) that the
district court plainly erred at sentencing by using a 500:1 marijuana-to-MDMA
conversion ratio to calculate his base offense level, and (2) that he is entitled to
credit for time served in State custody after his federal sentencing and time in
federal custody pursuant to the writ of habeas corpus ad prosequendum. After
careful review, we dismiss Schmidt’s appeal. 1
In a criminal case, a defendant must file a notice of appeal in the district
court no later than 14 days after the judgment is entered. See Fed. R. App. P.
4(b)(1)(A). Although the filing deadline in Rule 4(b) for criminal defendants is not
jurisdictional, if the government raises the timeliness issue, we must apply it and
dismiss the appeal. Lopez, 562 F.3d at 1311–14. Schmidt’s November 17, 2016
notice of appeal challenging his January 18, 2015 “judgment and sentence” is
untimely—by nearly 20 months—and the government has raised the timeliness
issue. Therefore, we must dismiss Schmidt’s appeal.
Furthermore, even if we were to liberally construe Schmidt’s notice of
appeal as designating the district court’s October 31, 2016 order declining the
Bureau of Prisons’ request to make a retroactive designation recommendation as to
1
We review jurisdictional issues and the interpretation of rules of federal procedure de novo.
United States v. Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009).
2
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whether his federal and state sentences should run concurrently, 2 we would lack
jurisdiction because that order is not final and appealable. Our appellate
jurisdiction is limited to review of orders that are final or that fall into a specific
class of interlocutory orders made appealable by statute or jurisprudential
exception. 28 U.S.C. §§ 1291, 1292; CSX Transp., Inc. v. City of Garden City, 235
F.3d 1325, 1327 (11th Cir. 2000). Importantly, this Court recently held that we
lack jurisdiction to review a district court’s denial of a non-binding
recommendation to the BOP because it is not a final order subject to appellate
review. United States v. Martin, 877 F.3d 1035, 1036–37 (11th Cir. 2017).
Accordingly, even if we were to construe Schmidt’s notice of appeal as designating
the October 2016 order, we would lack jurisdiction to consider it.
Finally, “Rule 3(c) requires that a notice of appeal designate an existent
judgment or order, not one that is merely expected or that is, or should be, within
the appellant’s contemplation when the notice of appeal is filed.” Bogle v. Orange
Cty. Bd. of Cty. Comm’rs, 162 F.3d 653, 661 (11th Cir. 1998). Therefore,
Schmidt’s notice of appeal cannot be construed, as he now contends, to appeal the
district court’s August 3, 2017 order denying his 28 U.S.C. § 2241 petition
regarding the BOP’s computation of time credited to his sentence because that
order was not issued until nearly nine months after Schmidt appealed.
2
Although Schmidt’s notice of appeal does not identify the October 31, 2016 order as one being
appealed, the notice does attach a copy of that order as an addendum.
3
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* * *
For the foregoing reasons, Schmidt’s appeal is DISMISSED.
4