US v. Andrew Privott

Filing 920081120

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-7171

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. ANDREW LEWIS PRIVOTT, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:02-cr-00090-JBF-FBS-1)

Submitted:

November 13, 2008

Decided:

November 20, 2008

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Andrew Lewis Privott, Appellant Pro Se. Laura Pellatiro Tayman, Assistant United States Attorney, Newport News, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Andrew Privott seeks to appeal the district court's order denying his motion for reduction The We of sentence has under to

18 U.S.C. dismiss

§ 3582(c)(2) appeal as

(2006). untimely.

Government grant the

moved

the

Government's

motion and dismiss Privott's appeal. In criminal cases, the defendant must file the notice of appeal within ten days after the entry of judgment. Fed. R.

App. P. 4(b)(1)(A); see United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. in 2000) and (holding that that a § 3582 proceeding is

criminal

nature

ten-day

appeal

period

applies).

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). "When of a the government properly objects Rule to 4(b) the is

untimeliness

defendant's

criminal

appeal,

mandatory and inflexible."

See United States v. Frias, 521 F.3d

229, 234 (2d Cir.) (citations omitted), cert denied, -- S. Ct. -, 2008 WL 2958966 (Oct. 6, 2008) (No. 08-5572). The district court entered its order denying the

motion for reduction of sentence on March 28, 2008. of appeal was deemed filed on May 23, 2008. Lack, 487 U.S. 266, 276 (1988). 2

The notice

See Houston v.

Because Privott failed to file

a timely notice of appeal or to obtain an extension of the appeal period, we grant the Government's motion and dismiss the appeal. legal before We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional

contentions the court

would

process. DISMISSED

3