United States v. Clark

• Court: Court of Appeals for the Second Circuit
• Decided: March 19, 2018
• Docket: 16-4158
• Status: Unpublished

Opinion

16-4158 United States v. Clark

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 19th day of March, two thousand eighteen. 4 5 PRESENT: 6 ROSEMARY S. POOLER, 7 REENA RAGGI, 8 CHRISTOPHER F. DRONEY, 9 Circuit Judges. 10 _____________________________________ 11 12 United States of America, 13 14 Appellee, 15 v. 16-4158 16 17 Kerry Clark, AKA Bembe, AKA Big Lips, 18 19 Defendant-Appellant.* 20 _____________________________________ 21 22 FOR APPELLEE: Nathan Rehn, Daniel B. Tehrani, 23 Assistant United States Attorneys, of 24 Counsel for Geoffrey S. Berman, 25 United States Attorney for the 26 Southern District of New York, New 27 York, N.Y. 28 29 FOR DEFENDANT-APPELLANT: Kerry Clark, pro se, Ayer, MA

* The Clerk of Court is respectfully instructed to amend the caption as above. 1 Appeal from orders of the United States District Court for the Southern District of New

2 York (Chin, J.).

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

4 DECREED that the appeal is DISMISSED.

5 Kerry Clark, pro se and incarcerated, appeals from the district court’s orders denying his

6 motion to reduce his sentence under 18 U.S.C. § 3582(c)(2) and for reconsideration of that

7 decision. The Government argues that the appeal is untimely. We assume the parties’ familiarity

8 with the underlying facts, the procedural history of the case, and the issues on appeal.

9 We agree with the Government and dismiss Clark’s appeal as untimely. A notice of

10 appeal in a criminal case must be filed within 14 days of the entry of the judgment or order being

11 appealed. Fed. R. App. P. 4(b)(1)(A); see also United States v. Arrango, 291 F.3d 170, 171 (2d

12 Cir. 2002) (applying time to appeal in a criminal case to § 3582 proceedings). Although Rule

13 4(b) is not jurisdictional, when “the government properly objects to the untimeliness of a

14 defendant’s criminal appeal, [it] is mandatory and inflexible.” United States v. Frias, 521 F.3d

15 229, 234 (2d Cir. 2008). Here, Clark’s November 2016 notice of appeal is untimely filed from

16 both the district court’s underlying June 2016 denial of his § 3582(c)(2) motion and its July 2016

17 denial of reconsideration. Because the Government objects, we must dismiss the appeal as

18 untimely.

19 Accordingly, we DISMISS the appeal as untimely filed.

20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk of Court