United States v. McClain

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 97-4510

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANTHONY MCCLAIN, a/k/a Ice, a/k/a New York,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Orangeburg. Charles E. Simons, Jr., Senior District Judge. (CR-96-179)

Submitted: August 18, 1998 Decided: September 8, 1998

Before WILKINS, NIEMEYER, and LUTTIG, Circuit Judges.

Dismissed by unpublished per curiam opinion.

William Elvin Hopkins, Jr., MCCUTCHEN, BLANTON, RHODES & JOHNSON, L.L.P., Columbia, South Carolina, for Appellant. J. Rene Josey, United States Attorney, Scarlett A. Wilson, Assistant United States Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Anthony McClain was convicted pursuant to his guilty pleas of

carjacking, armed robbery, carrying a firearm in connection with a

crime of violence, and possession of a firearm by a convicted

felon. On appeal, he alleges that he should have been tried in

state, rather than federal, court, that the district court

improperly applied the Sentencing Guidelines* in calculating his

sentence, and that trial counsel rendered ineffective assistance.

Because we find that McClain failed to file a timely notice of

appeal, we dismiss for lack of jurisdiction.

The time periods for filing notices of appeal are governed by

Fed. R. App. P. 4. These periods are “mandatory and

jurisdictional.” United States v. Raynor, 939 F.2d 191, 197 (4th

Cir. 1991). Criminal defendants must file their notices of appeal

within ten days after the entry of judgment. Fed. R. App. P. 4(b).

Although this time period may be extended in certain circumstances,

none of these apply to McClain.

The district court filed its judgment and commitment order on

November 19, 1996. McClain filed his notice of appeal on June 24,

1997, which is well beyond the ten-day appeal period. McClain’s

failure to note a timely appeal leaves this court without

jurisdiction to consider the merits of his appeal. We therefore

dismiss the appeal. We dispense with oral argument because the

* U.S. Sentencing Guidelines Manual (1995).

2 facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

DISMISSED