US v. Kirkwood D. Cabiness

Filing 920080703

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4343

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KIRKWOOD DONNELL CABINESS, Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Danville. Norman K. Moon, District Judge. (4:02-cr-70031-nkm-1)

Submitted:

June 6, 2008

Decided:

July 3, 2008

Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam opinion.

James J. O'Keeffe, IV, GENTRY, LOCKE, RAKES & MOORE, Roanoke, Virginia, for Appellant. John L. Brownlee, United States Attorney, Donald R. Wolthuis, Assistant United States Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: After pleading guilty pursuant to a written plea

agreement to multiple drug-related offenses, Kirkwood Cabiness was sentenced to 180 months' imprisonment. At sentencing, the

Government moved for a downward departure based on Cabiness' substantial assistance. Consequently, Cabiness was sentenced below the applicable sentencing guidelines range and below the statutory minimum sentence. Subsequently, the district court granted the Government's Fed. R. Crim. P. 35(b) motion for reduction of sentence in light of Cabiness' assistance in a state murder prosecution. The court

reduced Cabiness' sentence to 132 months' imprisonment by written order dated December 29, 2006 ("December 2006 order") and entered an amended judgment reflecting this sentence. Cabiness moved to

reconsider the December 2006 order, claiming the district court did not consider the full scope of his cooperation and contending his sentence should be reduced by an additional thirty-four months. The district court denied reconsideration by written order dated March 9, 2007 ("March 2007 order"). Cabiness filed a pro se motion

for leave to appeal both orders out of time on March 29, 2007.* We first address the timeliness of Cabiness' appeal of the December 2006 and March 2007 orders. In criminal cases, the

Prior to the district court's order concerning the timeliness of Cabiness' appeal, we directed the parties to address the timeliness issue and appointed appellate counsel for Cabiness. - 2 -

*

defendant must file his notice of appeal within ten days of the entry of an order or judgment. Fed. R. App. P. 4(b)(1)(A). With

or without a motion, the district court may grant an extension of time to file a notice of appeal of up to thirty days upon a showing of excusable neglect or good cause. Fed. R. App. P. 4(b)(4); These

United States v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985). time periods are mandatory and jurisdictional. Raynor, 939 F.2d 191, 197 (4th Cir. 1991).

United States v.

By written order, the district court found Cabiness' notice of appeal was untimely as to the court's December 2006 order. This finding was proper, as the notice of appeal was filed

outside the thirty-day extension period for excusable neglect or good cause. We therefore dismiss Cabiness' appeal to the extent he challenges the underlying December 2006 order granting the

Government's Rule 35(b) motion and imposing a term of 132 months' imprisonment. Cabiness' notice of appeal from the March 2007 order denying reconsideration was filed during the thirty-day extension period. found Exercising an abundance of caution, the district court demonstrated excusable neglect warranting the

Cabiness

extension of time of the appeal period from the March 2007 order. Cabiness' appeal of the March 2007 order denying reconsideration is therefore not time-barred.

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To

the

extent

Cabiness

claimed

in

his

motion

for

reconsideration that the district court improperly elected not to hold an evidentiary hearing in the sentencing reduction matter, this claim is cognizable on appeal as an allegation that the sentence was imposed in violation of law under 18 U.S.C.

§ 3742(a)(1) (2000). 149 (4th Cir. 1995). at 150.

See United States v. Pridgen, 64 F.3d 147, We review for abuse of discretion. See id.

A court abuses its discretion when its ruling is based "on

an erroneous view of the law or on a clearly erroneous assessment of the evidence." 405 (1990). Cooter & Gell v. Hartmax Corp., 496 U.S. 384,

In light of these principles and after careful review

of the applicable materials in the briefs and Joint Appendix, we find no abuse of discretion. Accordingly, we affirm the district court's March 2007 order and dismiss Cabiness' appeal to the extent he challenges the December 2006 order. facts and legal before We dispense with oral argument because the are and adequately argument presented not in aid the the

contentions the court

materials

would

decisional process. AFFIRMED IN PART; DISMISSED IN PART

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