United States v. Lightner

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 00-6127

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DAVID FITZGERALD LIGHTNER,

Defendant - Appellant.

Appeal from the United States District Court for the Western Dis- trict of North Carolina, at Charlotte. Robert D. Potter, Senior District Judge. (CR-93-133-P)

Submitted: May 25, 2000 Decided: June 5, 2000

Before WILLIAMS, MICHAEL, and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David Fitzgerald Lightner, Appellant Pro Se. Gretchen C. F. Shappert, Assistant United States Attorney, Charlotte, North Caro- lina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Following a jury trial, David Fitzgerald Lightner was con-

victed of possession with intent to distribute cocaine base in vio-

lation of 21 U.S.C. § 841(a)(1) (1994), and a related conspiracy

charge in violation of 21 U.S.C. § 846 (1994). On May 16, 1994,

the district court sentenced him to two concurrent life sentences.

This court affirmed the district court’s judgment. See United

States v. Lightner, No. 94-5540 (4th Cir. June 5, 1996) (unpub-

lished). Lightner now attempts to file a second direct criminal

appeal pursuant to 18 U.S.C. § 3742 (1994). We lack jurisdiction

to consider the merits of the appeal, however, because it is un-

timely. Criminal defendants have ten days from the entry of the

judgment or order at issue to file a notice of appeal. See Fed. R.

App. P. 4(b). The appeal periods established by Rule 4 are manda-

tory and jurisdictional. See Browder v. Director, Dep’t of Correc-

tions, 434 U.S. 257, 264 (1978). Lightner filed his notice of

appeal in January 2000, more than five years outside the appeal

period. Lightner’s untimely appeal deprives this court of juris-

diction to consider its merits. We therefore dismiss the appeal.

We dispense with oral argument because the facts and legal conten-

tions are adequately presented in the materials before the court

and argument would not aid the decisional process.

DISMISSED