United States v. Pierre Stark

Filing

OPINION FILED - THE COURT: William Jay Riley, Diana E. Murphy and Lavenski R. Smith AUTHORING JUDGE:Diana E. Murphy (PUBLISHED), Remand with Jurisdiction retained. [4440757] [15-3760, 15-3844]

United States Court of Appeals
For the Eighth Circuit
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No. 15-3760
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Pierre Starks, also known as Pep
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 15-3844
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Pierre Starks, also known as Pep
lllllllllllllllllllll Defendant - Appellant
____________
Appeals from United States District Court
for the Eastern District of Missouri - St. Louis
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Appellate Case: 15-3760

Page: 1

Date Filed: 08/24/2016 Entry ID: 4440757

Submitted: August 19, 2016
Filed: August 24, 2016
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Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
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MURPHY, Circuit Judge.
Pierre Starks appeals the district court's denial of his motions to reduce his
sentence under 18 U.S.C. § 3582(c)(2). The government argues that this appeal is
untimely under Fed. R. App. P. 4(b). Since the district court did not determine
whether Starks' untimely notice of appeal was the result of excusable neglect or good
cause, we remand the case to the district court.
Fed. R. App. P. 4(b)(1)(A)(i) requires a criminal defendant to file her notice of
appeal in the district court "within 14 days after . . . the entry of . . . the order being
appealed." The district court may extend this time period, however, under Rule
4(b)(4) which states:
Upon a finding of excusable neglect or good cause, the district court
may--before or after the time has expired, with or without motion and
notice--extend the time to file a notice of appeal for a period not to
exceed 30 days from the expiration of the time otherwise prescribed by
this Rule 4(b).
Although these time constraints are not jurisdictional limitations, "Rule 4(b)'s
timeliness requirements [are] inflexible and assure relief to a party properly raising
them." United States v. Watson, 623 F.3d 542, 546 (8th Cir. 2010).

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Appellate Case: 15-3760

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Date Filed: 08/24/2016 Entry ID: 4440757

On October 6, 2015 the district court entered its order denying Starks' motions
to reduce his sentence. He thus was required to file his notice of appeal in the district
court by October 20, and the district court could have extended this deadline to
November 19 on a showing of excusable neglect or good cause. See Fed. R. App. P.
4(b)(1)(A)(i), (b)(4). Starks filed his notice of appeal on November 9, twenty days
after the fourteen day deadline but ten days before the excusable neglect or good cause
deadline. See id. 4(c) (prison mailbox rule). The district court docketed Starks' notice
of appeal on November 13.
Starks argues that the district court implicitly granted him a thirty day extension
for excusable neglect or good cause under Rule 4(b)(4) when it docketed his late
notice of appeal. Our court has concluded, however, that "[b]efore a district court can
extend the time for filing a notice of appeal, it must find that the untimely notice is the
product of excusable neglect." United States v. Anna, 843 F.2d 1146, 1147 (8th Cir.
1988), abrogated on other grounds, Watson, 623 F.3d at 544. "Since the docketing
of a late notice of appeal is inevitably a clerical act, and not a judicial act, no inference
of a judicial finding of excusable neglect can be drawn therefrom." Id. Although
Anna was decided when we considered Rule 4(b) a limit to our jurisdiction, it controls
our decision in this case because the government properly raised the timeliness issue
and Anna's interpretation of the plain language of Rule 4(b) is unaffected by our
conclusion in Watson that Rule 4(b) is not jurisdictional.
Because the district court "has not made a finding of excusable neglect as
required by Rule 4(b)," we remand the case to the district court to determine whether
"this is a case of excusable neglect [or good cause] and, if so, whether [Starks'] time
for filing a notice of appeal should be extended for a period not to exceed 30 days
from the expiration" of the 14 day period that Rule 4(b)(1)(A)(i) establishes. Anna,
843 F.2d at 1147–48. If the district court finds that excusable neglect or good cause
extends Starks' time for filing a notice of appeal to November 9, 2015, the court shall

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advise our court, "and this appeal may then proceed without further notice or
briefing." See id. at 1148.
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Date Filed: 08/24/2016 Entry ID: 4440757