US v. Dana Gray

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed IFP [999731026-2], updating fee code Originating case number: 8:12-cr-00949-JMC-12 Copies to all parties and the district court/agency. [999963397]. Mailed to: Dana Gray. [15-7980]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7980

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANA LEE GRAY, a/k/a Mook,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Anderson.
J. Michelle Childs, District
Judge. (8:12-cr-00949-JMC-12)

Submitted:

May 23, 2016

Before DIAZ and
Circuit Judge.

HARRIS,

Decided:

Circuit

Judges,

and

November 7, 2016

DAVIS,

Senior

Dismissed in part and affirmed in part by unpublished per curiam
opinion.

Dana Lee Gray, Appellant Pro Se.
Beth Drake, Acting United
States Attorney, A. Lance Crick, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Dana Lee Gray appeals the district court’s orders denying
his

motion

for

a

sentence

reduction,

pursuant

to

18

U.S.C.

§ 3582(c)(2) (2012), and his motion for reconsideration. *

We

grant leave to proceed in forma pauperis, dismiss in part, and
affirm in part.
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); see United States v. Alvarez, 210 F.3d 309, 310
(5th Cir. 2000) (holding that § 3582 proceeding is criminal in
nature

and

Rule

4(b)(1)(A)

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 30
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).
The district court entered its order denying the motion for
reduction of sentence on September 1, 2015.

Gray filed the

notice of appeal, at the earliest, on December 14, 2015, after
*

We construe Gray’s notice of appeal as encompassing both
the
§ 3582
dismissal
order
and
the
text
order
denying
reconsideration.
See Fed. R. App. P. 3(c)(1)(B); Jackson v.
Lightsey, 775 F.3d 170, 176 (4th Cir. 2014) (“[W]e construe
. . . [R]ule [3(c)] liberally and take a functional approach to
compliance, asking whether the putative appellant has manifested
the intent to appeal a specific judgment or order and whether
the affected party had notice and an opportunity fully to brief
the issue.”).

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the

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and

excusable

September 1 order.

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neglect

periods

expired

for

the

Consequently, Gray’s appeal of the § 3582

order is untimely, and we dismiss this portion of the appeal.
As to the district court’s order denying Gray’s motion for
reconsideration, in United States v. Goodwyn, 596 F.3d 233 (4th
Cir. 2010), we held that a district court lacks authority to
grant

a

motion

motion.

Id.

to
at

reconsider
234.

its

Under

ruling

Goodwyn,

on

a

Gray

§ 3582(c)(2)

had

only

one

opportunity to seek, through a § 3582(c)(2) motion, the benefit
of Amendment 782.

See id. at 235-36.

Once the district court

ruled on Gray’s initial motion, it lacked authority to consider
subsequent relief based on the same Amendment, either by way of
a second § 3582 motion or a motion for reconsideration of the
initial order.

Thus, the district court lacked jurisdiction

over the motion for reconsideration, and we affirm the district
court’s order denying that motion.
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.

DISMISSED IN PART;
AFFIRMED IN PART

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