United States v. Carlos Dailey

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6983

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

CARLOS DAILEY, a/k/a Bonecrusher,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:09-cr-00233-JRS-3)

Submitted: August 23, 2012 Decided: August 29, 2012

Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam
opinion.

Carlos Dailey, Appellant Pro Se. David Vincent Harbach, II,
Olivia L. Norman, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Carlos Dailey appeals the district court’s orders

granting his 18 U.S.C. § 3582(c)(2) (2006) motion for sentence

reduction and denying his subsequent motion for reconsideration.

The Government has moved to dismiss Dailey’s appeal of the

court’s underlying order granting his § 3582(c)(2) motion as

untimely.

In criminal cases, the 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 Federal Rules of Criminal Procedure do

not specifically provide for motions for reconsideration and

prescribe the time in which they must be filed,” Nilson Van &

Storage Co. v. Marsh, 755 F.2d 362, 364 (4th Cir. 1985), the

Supreme Court has held that a would-be appellant who files a

motion for reconsideration in a criminal case within the

original period in which an appeal is permitted is entitled to

the full time period for noticing the appeal after the motion to

reconsider has been decided. United States v. Ibarra, 502 U.S.

1, 4 n.2 (1991); see also United States v. Christy, 3 F.3d 765,

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767 n.1 (4th Cir. 1999) (same). In this case, the court’s order

granting Dailey’s § 3582(c)(2) motion was entered on April 4,

2012, and the fourteen-day appeal period expired on Wednesday,

April 18, 2012. See Fed. R. App. P. 26(a)(1). Although

Dailey’s pro se motion for reconsideration is undated, the

motion was filed in the district court on May 4, 2012, more than

two weeks after the appeal period expired. Accordingly,

Dailey’s motion for reconsideration did not serve to restart the

period for taking an appeal.

Pursuant to the pro se prisoner mailbox rule announced

in Houston v. Lack, 478 U.S. 266, 276 (1988), Dailey’s notice of

appeal is deemed filed when it is delivered to prison officials

for mailing. Although Dailey’s notice of appeal is undated, it

is unknown when he delivered it to prison officials for mailing,

and there is no date indicating when it was postmarked, Dailey

states on appeal that he placed his notice of appeal in the

institution’s internal mailing system on May 21, 2012.

Accepting Dailey’s assertions as true, his appeal is nonetheless

untimely, as it was filed thirty-three days after the appeal

period expired on Wednesday, April 18, 2012.

Because Dailey’s notice of appeal is untimely and the

Government has seasonably sought dismissal, we grant the

Government’s motion to dismiss Dailey’s appeal with respect to

the court’s order granting his § 3582(c)(2) motion for sentence

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reduction. See United States v. Mitchell, 518 F.3d 740, 744

(10th Cir. 2008) (stating that the time limitations imposed by

Fed. R. App. P. 4(b)(4) “must be enforced by th[e] court when

properly invoked by the government”).

We also conclude that the district court lacked

authority to entertain Dailey’s motion for reconsideration. See

United States v. Goodwyn, 596 F.3d 233, 235-36 (4th Cir. 2010).

Accordingly, we affirm the district court’s order denying

Dailey’s motion for reconsideration. 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