United States v. Diquelle Sweet

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4047

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DIQUELLE SWEET,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge. (7:18-cr-00042-D-2)

Submitted: March 9, 2022 Decided: March 16, 2022 Before WILKINSON and RUSHING, Circuit Judges, and SHEDD, Senior Circuit Judge. Dismissed by unpublished per curiam opinion.

ON BRIEF: Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, for Appellant. David A. Bragdon, Kristine L. Fritz, Jennifer P. May-Parker, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. *2 PER CURIAM:

Diquelle Sweet seeks to appeal his conviction and sentence. The Government has moved to dismiss the appeal as untimely. In criminal cases, a defendant’s notice of appeal must be filed within 14 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 30 days to file a notice of appeal. Fed. R. App. P. 4(b)(4).

Although the appeal period in a criminal case is not a jurisdictional provision, but rather a claim-processing rule, United States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009), “we must dismiss” the appeal “[w]hen the Government promptly invokes the rule in response to a late-filed criminal appeal,” United States v. Oliver, 878 F.3d 120, 123 (4th Cir. 2017). When the Government moves to dismiss the appeal within the time required by Local Rule 27(f), * this court will grant the motion. United States v. Hyman, 884 F.3d 496, 500 (4th Cir. 2018).

The district court entered judgment on August 17, 2018. Sweet filed the notice of appeal, at the earliest, on February 3, 2021. Because Sweet failed to file a timely notice of appeal or to obtain an extension of the appeal period, and the Government has promptly invoked the appeal’s untimeliness, we grant the Government’s motion to dismiss and dismiss the appeal as untimely. We dispense with oral argument because the facts and

* Local Rule 27(f)(2) requires that motions to dismiss be filed within the time allowed for filing a response brief. Here, the Government complied with that rule.

legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

DISMISSED