UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6983
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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Affirmed in part; dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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
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