United States v. Dwayne Benoist

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4315

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

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Affirmed in part and dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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)
2
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).