UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4315
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DWAYNE LEE BENOIST,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cr-00112-TDS-1)
Submitted: July 9, 2012 Decided: August 3, 2012
Before WILKINSON, NIEMEYER, and FLOYD, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Dhamian Blue, BLUE, STEPHENS & FELLERS, LLP, Raleigh, North
Carolina, for Appellant. Graham Tod Green, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dwayne Lee Benoist appeals the district court’s order
denying his motion for an extension of time to file a notice of
appeal from his conviction and sentence. To the extent Benoist
challenges his underlying conviction and sentence, the
Government seeks to dismiss the appeal as untimely. We affirm
in part and dismiss in part.
In criminal cases, a defendant must file a notice of
appeal within fourteen days after the entry of judgment. Fed.
R. App. P. 4(b)(1)(A). With or without a motion, upon a showing
of excusable neglect or good cause, the district court may grant
an extension of up to thirty days to file a notice of appeal.
Fed. R. App. P. 4(b)(4); United States v. Reyes, 759 F.2d 351,
353 (4th Cir. 1985). Although 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.” United
States v. Mitchell, 518 F.3d 740, 744 (10th Cir. 2008).
The district court entered judgment in Benoist’s
criminal case on March 24, 2010. Benoist filed a motion for an
extension of time to file a direct appeal no earlier than
February 2, 2012. The district court denied the motion for
For the purpose of this appeal, we assume that the date
appearing on the document is the earliest date it could have
(Continued)
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being inordinately late, and Benoist filed timely notice of
appeal of that order on April 17, 2012. Finding no error in the
district court’s denial of Benoist’s motion for an extension of
time, we affirm. To the extent Benoist attempts to challenge
his conviction and sentence, we grant the Government’s motion to
dismiss the direct appeal as untimely because Benoist failed to
file a timely notice of appeal or to obtain an extension of the
appeal period
Accordingly, we affirm the district court’s order
denying the motion for an extension of time, and grant the
Government’s motion to dismiss the appeal of the underlying
criminal judgment. 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.
AFFIRMED IN PART;
DISMISSED IN PART
been properly delivered to prison officials for mailing to the
court. Fed. R. App. 4(c); Houston v. Lack, 487 U.S. 266 (1988).
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