[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 15, 2006
No. 06-11439 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00011-CR-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CASPER FRANKLIN BROWN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(August 15, 2006)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
In 2002, Casper Franklin Brown pled guilty to possession with intent to
distribute 5 or more grams of crack, in violation of 21 U.S.C. § 841(a)(1). Over
three years later, Brown filed a motion to file a direct appeal out of time, which the
district court denied. After review, we affirm the district court’s denial of Brown’s
motion.
I. BACKGROUND
After Brown pled guilty, the district court sentenced Brown to 200 months’
imprisonment and 5 years’ supervised release and entered the judgment on July 10,
2002. After pronouncing the sentence, the district court advised Brown that he had
ten days to file an appeal, and Brown responded that he understood. However,
Brown did not file a direct appeal.
Three and a half years later, on January 10, 2006, Brown filed a “Motion
pursuant to Title 18 U.S.C. § 3742(a)(1),” in which he argued that he had received
ineffective assistance of counsel when his trial attorney failed to file a notice of
appeal as Brown requested. Brown did not explain why he had waited over three
years to file this motion.
The district court transmitted the motion to this Court. In turn, this Court
construed the motion as a motion for an out-of-time appeal and returned it to the
district court because Federal Rule of Appellate Procedure 4(b)(4) provides that
only the district court may grant an out-of-time appeal. The district court entered
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an order denying Brown’s motion, finding that Brown had “not established
sufficient reasons for seeking to file an appeal more than three and one-half years
after he was sentenced.” This appeal followed.
II. DISCUSSION
Ordinarily, a criminal defendant must file a notice of appeal within ten days
of the final judgment, as proscribed by Rule 4 of the Federal Rules of Appellate
Procedure. Fed. R. App. P. 4(b)(1)(A)(i); see also United States v. Phillips, 225
F.3d 1198, 1199 (11 th Cir. 2000). This requirement is “jurisdictional and strictly
applied.” Phillips, 225 F.3d at 1200. However, under Rule 4(b), upon a finding of
excusable neglect or good cause, the district court may extend the time for filing a
notice of appeal “for a period not to exceed 30 days from the expiration of the time
otherwise prescribed by Rule 4(b).” Fed. R. App. P. 4(b)(4); see also Dismuke v.
United States, 864 F.2d 106, 107 (11 th Cir. 1989). We review for abuse of
discretion the denial of a Rule 4(b) motion for leave to file an out-of-time appeal.
Dismuke, 864 F.2d at 107.
Upon review of the record and the parties’ briefs, we discern no reversible
error. The district court concluded that Brown had not “established sufficient
reasons for seeking to file an appeal more than three and one-half years after he
was sentenced.” This determination was not an abuse of discretion given that
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Brown failed to give any explanation as to why he waited until January 10, 2006 to
file his motion when he was sentenced on July 9, 2002. Brown was fully informed
at sentencing that he had ten days to file a notice of appeal, and, by his own
admission, requested that his trial counsel do so after the sentencing. Brown
offered no basis for finding that his three and one-half year delay in filing his Rule
4(b) motion was due to excusable neglect or that good cause exists to permit him to
file an out-of-time appeal.
Furthermore, Rule 4(b)(4) prohibits a district court from extending the time
for filing a notice of appeal more than thirty days beyond Rule 4(b)’s ten-day
deadline. See United States v. Grant, 256 F.3d 1146, 1150-51 (11 th Cir. 2001)
(finding that defendant’s second notice of appeal was filed outside the 30-day
window of Rule 4(b)(4)). Brown sought to file his notice of appeal well beyond
this thirty-day period. The district court entered Brown’s judgment on July 10,
2002. See Fed. R. App. P. 4(b)(6). Under Rule 4(b)(1)(A)(i) and Rule 26(a), a
notice of appeal was due to be filed on July 24, 2002. Under Rule 4(b)(4), given
the proper circumstances, the district court was authorized to extend that deadline
to August 23, 2002, but no further. Therefore, the district court did not abuse its
discretion in denying Brown’s Rule 4(b) motion filed on January 10, 2006.
Finally, we note that Brown does allege in his motion that his counsel was
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ineffective for not filing a direct appeal. Alternatively, even if we were to construe
Brown’s motion as a motion brought pursuant to 28 U.S.C. § 2255, this does not
change the result. The one-year period for filing a § 2255 motion had expired by
January 10, 2006, and Brown set forth no facts which would arguably toll the
limitations period. See 28 U.S.C. § 2244(d)(1), (2); Steed v. Head, 219 F.3d 1298,
1300 (11 th Cir. 2000) (holding that equitable tolling of § 2244(d)’s one-year
limitations period requires “extraordinary circumstances that are both beyond [the
defendant’s] control and unavoidable even with diligence,” which means more
than a “garden variety claim of excusable neglect” (quotation marks omitted)).
For all of these reasons, we affirm the district court’s denial of Brown’s
motion.
AFFIRMED.
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