US v. Elijah Johnson, No. 09-8266 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-8266 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ELIJAH JOHNSON, a/k/a Kevin Sumpter, a/k/a John David Dula, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, Chief District Judge. (2:98-cr-00336-DCN-2) Submitted: July 27, 2010 Decided: August 4, 2010 Before TRAXLER, Chief Judge, and WILKINSON and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Elijah Johnson, Appellant Pro Se. Peter Thomas Phillips, Assistant United States Attorney, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Elijah Johnson seeks to appeal the district court s order denying his motion U.S.C. § 3582 (2006). for reduction of sentence under 18 At the time the district court entered its order, the defendant was required to file the notice of appeal within ten days after the entry of judgment. 1 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 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). The district court entered its order motion for reduction of sentence on August 13, 2009. denying the The notice of appeal was filed, at the earliest, on December 17, 2009. 2 Because Johnson failed to file a timely notice of appeal or to obtain an extension of the appeal period, we dismiss the appeal as untimely filed. We dispense with oral argument because the 1 On December 1, 2009, the ten-day appeal period became fourteen days. This change does not affect our analysis. 2 This is the date Johnson placed on his notice of appeal. See Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276 (1988). 2 facts and materials legal before contentions are adequately the and argument court presented would not in the aid the decisional process. DISMISSED 3
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