United States v. Dondell Davidson

Opinion

[DO NOT PUBLISH]

In the

United States Court of Appeals For the Eleventh Circuit

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No. 24-11780

Non-Argument Calendar

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UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus DONDELL CYRUS DAVIDSON,

Defendant- Appellant.

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Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 2:18-cr-14006-KAM-1

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2 Opinion of the Court 24-11780

Before ROSENBAUM, LUCK, and ABUDU, Circuit Judges. PER CURIAM:

Upon review of the record and the government’s motion to dismiss, we conclude that this appeal is untimely. Dondell Davidson seeks review of the district court’s March 27, 2024 order denying his motion for a sentence reduction. To timely seek review of that order, he needed to file a notice of appeal by April 10, 2024. See Fed. R. App. P. 4(b)(1)(A); United States v. Fair, 326 F.3d 1317, 1318 (11th Cir. 2003). His notice of appeal, deemed filed on May 20, 2024, is therefore untimely. See Fed. R. App. P. 4(c)(1); Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014).

Because the government moves to dismiss the notice of appeal as untimely, we “must apply the time limits of Rule 4(b).” See 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). Additionally, because Davidson filed his notice of appeal more than 30 days after the expiration of the 14-day appeal period, he is not eligible for relief under Rule 4(b)(4). See Fed. R. App. P. 4(b)(4) (providing that, upon a finding of excusable neglect or good cause, the district court may extend the time to file a notice of appeal for up to 30 days); United States v. Ward, 696 F.2d 1315, 1317-18 (11th Cir. 1983) (noting that we customarily treat a late notice of appeal, filed within the 30 days during which an extension is permissible, as a motion

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24-11780 Opinion of the Court 3

for extension of time under Rule 4(b)(4) and remand to the district court).

Accordingly, the government’s motion to dismiss this appeal as untimely is GRANTED, and this appeal is DISMISSED.