United States v. Micheal Lee Schmidt

Opinion

Case: 16-17164 Date Filed: 04/27/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-17164 Non-Argument Calendar ________________________

D.C. Docket No. 8:14-cr-00184-JDW-TBM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL LEE SCHMIDT,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(April 27, 2018)

Before MARCUS, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM: Case: 16-17164 Date Filed: 04/27/2018 Page: 2 of 4

Michael Lee Schmidt appeals his 36-month sentence for conspiracy to

possess with intent to distribute methylone. On appeal, he asserts (1) that the

district court plainly erred at sentencing by using a 500:1 marijuana-to-MDMA

conversion ratio to calculate his base offense level, and (2) that he is entitled to

credit for time served in State custody after his federal sentencing and time in

federal custody pursuant to the writ of habeas corpus ad prosequendum. After

careful review, we dismiss Schmidt’s appeal. 1

In a criminal case, a defendant must file a notice of appeal in the district

court no later than 14 days after the judgment is entered. See Fed. R. App. P.

4(b)(1)(A). Although the filing deadline in Rule 4(b) for criminal defendants is not

jurisdictional, if the government raises the timeliness issue, we must apply it and

dismiss the appeal. Lopez, 562 F.3d at 1311–14. Schmidt’s November 17, 2016

notice of appeal challenging his January 18, 2015 “judgment and sentence” is

untimely—by nearly 20 months—and the government has raised the timeliness

issue. Therefore, we must dismiss Schmidt’s appeal.

Furthermore, even if we were to liberally construe Schmidt’s notice of

appeal as designating the district court’s October 31, 2016 order declining the

Bureau of Prisons’ request to make a retroactive designation recommendation as to

1 We review jurisdictional issues and the interpretation of rules of federal procedure de novo. United States v. Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009).

2 Case: 16-17164 Date Filed: 04/27/2018 Page: 3 of 4

whether his federal and state sentences should run concurrently, 2 we would lack

jurisdiction because that order is not final and appealable. Our appellate

jurisdiction is limited to review of orders that are final or that fall into a specific

class of interlocutory orders made appealable by statute or jurisprudential

exception. 28 U.S.C. §§ 1291, 1292; CSX Transp., Inc. v. City of Garden City, 235

F.3d 1325, 1327 (11th Cir. 2000). Importantly, this Court recently held that we

lack jurisdiction to review a district court’s denial of a non-binding

recommendation to the BOP because it is not a final order subject to appellate

review. United States v. Martin, 877 F.3d 1035, 1036–37 (11th Cir. 2017).

Accordingly, even if we were to construe Schmidt’s notice of appeal as designating

the October 2016 order, we would lack jurisdiction to consider it.

Finally, “Rule 3(c) requires that a notice of appeal designate an existent

judgment or order, not one that is merely expected or that is, or should be, within

the appellant’s contemplation when the notice of appeal is filed.” Bogle v. Orange

Cty. Bd. of Cty. Comm’rs, 162 F.3d 653, 661 (11th Cir. 1998). Therefore,

Schmidt’s notice of appeal cannot be construed, as he now contends, to appeal the

district court’s August 3, 2017 order denying his 28 U.S.C. § 2241 petition

regarding the BOP’s computation of time credited to his sentence because that

order was not issued until nearly nine months after Schmidt appealed.

2 Although Schmidt’s notice of appeal does not identify the October 31, 2016 order as one being appealed, the notice does attach a copy of that order as an addendum. 3 Case: 16-17164 Date Filed: 04/27/2018 Page: 4 of 4

* * *

For the foregoing reasons, Schmidt’s appeal is DISMISSED.