United States v. Lofton

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 12, 2023
• Docket: 22-4105
• Status: Unpublished

Opinion

Appellate Case: 22-4105 Document: 010110796996 Date Filed: 01/12/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 12, 2023 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-4105 (D.C. No. 4:21-CR-00023-DN-1) DEVIN PARIS LOFTON, (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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Page: 3

shall issue forthwith.

Entered for the Court

Michael R. Murphy Circuit Judge