US v. Albert Charles Burge

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cr-00017-GCM-DLH-1 Copies to all parties and the district court/agency. [999710254]. Mailed to: Burgess. [15-6932]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6932

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:

October 29, 2015

Decided:

December 2, 2015

Before NIEMEYER and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Albert Charles Burgess, Appellant Pro Se. Thomas Richard Ascik,
Assistant United States Attorney, Asheville, North Carolina,
Kimlani M. Ford, Cortney Randall, Edward R. Ryan, Assistant
United
States
Attorneys,
Charlotte,
North
Carolina,
for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Albert Charles Burgess, Jr., seeks to appeal the district
court’s order denying his motion to reconsider its order denying
his Fed. R. Crim. P. 33 motion for a new trial.

In criminal

cases, the defendant must file his notice of appeal within 14
days

after

the

entry

of

judgment.

court

entered

Fed.

R.

App.

P.

4(b)(1)(A)(i).
The

district

its

order

motion for a new trial on April 30, 2012.
period expired on May 14, 2012.

denying

Burgess’

The 14-day appeal

See Fed. R. App. P. 26(a).

Burgess did not file his motion to reconsider until May 28,
2015. *
“[T]he
specifically

Federal

Rules

provide

for

of

Criminal

motions

do

not

reconsideration

for

Procedure

and

prescribe the time in which they must be filed.”
Storage

Co.

v.

Marsh,

755

F.2d

362,

364

(4th

Nilson Van &
Cir.

1985).

However, the Supreme Court has held that a motion for rehearing
or

reconsideration

extends

the

time

for

filing

a

notice

of

appeal in a criminal case if the motion is filed before the
order

sought

to

be

reconsidered

*

becomes

final.

See

United

For the purpose of this appeal, we assume that the date
appearing on the motion to reconsider is the earliest date it
could have been properly delivered to prison officials for
mailing to the court.
See Houston v. Lack, 487 U.S. 266, 276
(1988).

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States v. Ibarra, 502 U.S. 1, 4 n.2 (1991) (per curiam) (holding
that

would-be

appellants

who

file

a

timely

motion

for

reconsideration from a criminal judgment are entitled to a full
time

period

for

reconsideration

noticing

has

been

the

appeal

decided);

after

United

the

States

motion
v.

for

Dieter,

429 U.S. 6, 7-8 (1976) (same); United States v. Christy, 3 F.3d
765, 767 n.1 (4th Cir. 1993) (same).

Because Burgess did not

timely file the motion to reconsider, the district court should
have denied the motion as untimely.

We therefore affirm the

denial of the motion to reconsider on the ground that the motion
was untimely.
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.

AFFIRMED

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