USA v. Timothy Allen Phillips, No. 22-13572 (11th Cir. 2023)
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USCA11 Case: 22-13572 Document: 36-1 Date Filed: 11/22/2023 Page: 1 of 2 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-13572 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plainti -Appellee, versus TIMOTHY ALLEN PHILLIPS, Defendant- Appellant. ____________________ Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 2:20-cr-00038-AKK-JHE-1 ____________________ USCA11 Case: 22-13572 2 Document: 36-1 Date Filed: 11/22/2023 Opinion of the Court Page: 2 of 2 22-13572 Before JILL PRYOR, NEWSOM, and LUCK, Circuit Judges. PER CURIAM: The government’s motion to dismiss this appeal as untimely is GRANTED. Timothy Phillips’s October 21, 2022 notice of appeal is untimely to challenge the final criminal judgment and sentence entered on November 3, 2021. See Fed. R. App. P. 4(b)(1)(A) (providing that in criminal cases, a defendant’s notice of appeal must be filed within 14 days after the entry of the judgment or order being appealed); United States v. Lopez, 562 F.3d 1309, 1313-14 (11th Cir. 2009) (holding that we must apply Rule 4(b)’s 14-day time limit when the government objects to an untimely notice of appeal). While Phillips argues that the government forfeited a timeliness objection by failing to raise it sooner, the government may object to timeliness “for the first time” in its response brief. See Lopez, 562 F.3d at 1313. Here, the government has not yet filed its response brief, and it filed its motion before the deadline for that brief. Accordingly, this appeal is DISMISSED. 1 Phillips’s alternative request for appointment of counsel in seeking relief under 28 U.S.C. § 2255 is DENIED without prejudice to him seeking such relief in the district court. 1
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