United States v. Albert Burgess

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-7376

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALBERT CHARLES BURGESS,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Graham C. Mullen,
Senior District Judge. (1:09-cr-00017-GCM-DLH-1)

Submitted: December 20, 2016 Decided: December 22, 2016

Before GREGORY, Chief Judge, and WYNN and FLOYD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Albert Charles Burgess, Appellant Pro Se. Kimlani M. Ford,
Cortney Randall, Edward R. Ryan, Assistant United States
Attorneys, Charlotte, North Carolina; Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Albert Charles Burgess, Jr., seeks to appeal his 292-month

sentence imposed following his convictions for knowingly

possessing visual materials depicting a minor engaging in

sexually explicit conduct, which were shipped in interstate

commerce via computer, in violation of 18 U.S.C. § 2252(a)(4)(B)

(2012), and knowingly receiving visual materials depicting a

minor engaging in sexually explicit conduct, which were shipped

in interstate commerce via computer, in violation of 18 U.S.C.

§ 2252(a)(2). In criminal cases, a defendant must file his

notice of appeal within 14 days after the entry of judgment.

Fed. R. App. P. 4(b)(1)(A)(i). With or without a motion, upon a

showing of excusable neglect or good cause, the district court

may grant an extension of up to 30 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).

The district court entered the criminal judgment imposing

the 292-month sentence on August 27, 2010. Burgess filed his

notice of appeal on September 30, 2016. 1 Because Burgess failed

to file a timely notice of appeal or obtain an extension of the

1 For the purpose of this appeal, we assume that the date
appearing on the notice of appeal is the earliest date it could
have been properly delivered to prison officials for mailing to
the court. See Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S.
266, 276 (1988).

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appeal period, we dismiss the appeal. 2 We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.

DISMISSED

2 We note that the appeal period in a criminal case is not a
jurisdictional provision, but, rather, a claim-processing rule.
Bowles v. Russell, 551 U.S. 205, 209-14 (2007); United States v.
Urutyan, 564 F.3d 679, 685 (4th Cir. 2009). Because Burgess’
appeal is inordinately late, and its consideration is not in the
best interest of judicial economy, we exercise our inherent
power to dismiss it. United States v. Mitchell, 518 F.3d 740,
744, 750 (10th Cir. 2008).

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