United States v. Randy Rohrbaugh

USCA4 Appeal: 22-4448 Doc: 25 Filed: 02/21/2023 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4448

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RANDY L. ROHRBAUGH,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Thomas S. Kleeh, Chief District Judge. (2:06-cr-00019-TSK-MJA-1)

Submitted: February 16, 2023 Decided: February 21, 2023

Before GREGORY, Chief Judge, RUSHING, Circuit Judge, and FLOYD, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

ON BRIEF: Richard W. Weston, WESTON ROBERTSON, Hurricane, West Virginia, for Appellant. William Ihlenfeld, United States Attorney, Wheeling, West Virginia, Christopher L. Bauer, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. *2 USCA4 Appeal: 22-4448 Doc: 25 Filed: 02/21/2023 Pg: 2 of 3

PER CURIAM:

Randy L. Rohrbaugh seeks to appeal the district court’s judgment revoking his

supervised release and sentencing him to 14 months’ imprisonment. The Government

asserts that the appeal is untimely and should be dismissed.

In criminal cases, the defendant must file the notice of appeal 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), “[w]hen the Government

promptly invokes the rule in response to a late-filed criminal appeal, we must dismiss,”

United States v. Oliver, 878 F.3d 120, 123 (4th Cir. 2017); see United States v. Hyman,

884 F.3d 496, 500 (4th Cir. 2018).

The district court entered judgment on May 26, 2022. Rohrbaugh filed the notice

of appeal on August 8, 2022. * Because Rohrbaugh 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 dismiss the appeal. We dispense with oral argument because

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

USCA4 Appeal: 22-4448 Doc: 25 Filed: 02/21/2023 Pg: 3 of 3

the facts and legal contentions are adequately presented in the materials before this court

and argument would not aid the decisional process.

DISMISSED