United States v. Lofton, No. 22-4105 (10th Cir. 2023)
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Appellate Case: 22-4105 Document: 010110796996 Date Filed: 01/12/2023 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _________________________________ UNITED STATES OF AMERICA, Page: 1 FILED United States Court of Appeals Tenth Circuit January 12, 2023 Christopher M. Wolpert Clerk of Court Plaintiff - Appellee, v. DEVIN PARIS LOFTON, No. 22-4105 (D.C. No. 4:21-CR-00023-DN-1) (D. Utah) Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before PHILLIPS, MURPHY, and EID, Circuit Judges. _________________________________ After examining the briefs and appellate record, this court has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Accordingly, we order the case submitted without oral argument. Devin Paris Lofton filed an 18 U.S.C. § 3582(c)(1)(A) motion for compassionate release. The district court entered final judgment denying the motion on October 3, 2022. Pursuant to Fed. R. App. P. 4(b), Lofton’s notice of appeal was due fourteen days later, on October 17, 2022. See United States v. * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 22-4105 Document: 010110796996 Date Filed: 01/12/2023 Page: 2 McCalister, 601 F.3d 1086, 1087 (10th Cir. 2010) (holding that a § 3582(c) motion is a criminal proceeding). Lofton did not, however, file his notice of appeal until October 31, 2022, a full fourteen days after the Rule 4(b) deadline. Although Lofton’s notice of appeal included a handwritten date of October 17, 2022, this notation is not enough to satisfy the timeliness requirement. Pursuant to the prison mailbox rule, a notice of appeal given to prison officials for mailing by the filing deadline is deemed timely only if (1) it is accompanied by a declaration or notarized statement stating the date of deposit or (2) evidence like a postmark that the notice was timely deposited. Fed. R. App. P. 4(c)(1). Lofton’s notice of appeal did not contain the required declaration and it was postmarked October 26, 2022, well past the deadline. The time limit set out in Rule 4(b)(1)(A) is an “inflexible claim-processing rule” that must be enforced if raised by a party. United States v. Garduno, 506 F.3d 1287, 1291 (10th Cir. 2007). Because the United States objects to the timeliness of Lofton’s notice of appeal, and because that notice is untimely, dismissal is “mandatory.” Id. at 1290. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court dismisses Lofton’s appeal for failure to file a timely notice of appeal. This court’s mandate 2 Appellate Case: 22-4105 Document: 010110796996 Date Filed: 01/12/2023 shall issue forthwith. Entered for the Court Michael R. Murphy Circuit Judge 3 Page: 3
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