United States v. Portee

Second Circuit

United States v. Portee

54 F. App'x 27

CourtCourt of Appeals for the Second Circuit

DecidedDecember 31, 2002

DocketDocket No. 02-1305

StatusPublished

This text of 54 F. App'x 27 (United States v. Portee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Portee, 54 F. App'x 27 (2d Cir. 2002).

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Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the appeal be and it hereby is DISMISSED.

Appellant Jerome Frazier appeals the district court’s (Buchwald, J.) decision, under Section 5G1.3(c) of the Sentencing Guidelines, to make his federal sentence run consecutively to the undischarged term of a state sentence for another crime. The district court filed its judgment on April 24, 2002. Frazier’s notice of appeal is dated May 20, 2002. The appeal was not submitted within the ten-day window mandated by Fed. R.App. P. 4(b). There is no indication in the record that any of Rule 4’s exceptions to the ten-day rule apply in this case. Accordingly, we lack jurisdiction to hear the appeal. See United States v. Outen, 286 F.3d 622, 630 (2d Cir.2002) (“[N]ot only are the time limits of Fed. RApp. P. 4 mandatory and jurisdictional, these time limits are the one procedural area which courts of appeal are expressly forbidden from altering or suspending in an individual case.”) (internal citations and quotation marks omitted). That the district court allegedly failed to advise the defendant of his right to appeal does not change this jurisdictional fact; the defendant’s remedy, if any, may be pursued through a habeas action pursuant to 28 U.S.C. § 2255. See United States v. Ferraro, 992 F.2d 10, 11-12 (2d Cir.1993) (per curiam).

The appeal is DISMISSED.

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SUMMARY ORDER

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the appeal be and it hereby is DISMISSED.

Appellant Jerome Frazier appeals the district court’s (Buchwald, J.) decision, under Section 5G1.3(c) of the Sentencing Guidelines, to make his federal sentence run consecutively to the undischarged term of a state sentence for another crime. The district court filed its judgment on April 24, 2002. Frazier’s notice of appeal is dated May 20, 2002. The appeal was not submitted within the ten-day window mandated by Fed. R.App. P. 4(b). There is no indication in the record that any of Rule 4’s exceptions to the ten-day rule apply in this case. Accordingly, we lack jurisdiction to hear the appeal. See United States v. Outen, 286 F.3d 622, 630 (2d Cir.2002) (“[N]ot only are the time limits of Fed. RApp. P. 4 mandatory and jurisdictional, these time limits are the one procedural area which courts of appeal are expressly forbidden from altering or suspending in an individual case.”) (internal citations and quotation marks omitted). That the district court allegedly failed to advise the defendant of his right to appeal does not change this jurisdictional fact; the defendant’s remedy, if any, may be pursued through a habeas action pursuant to 28 U.S.C. § 2255. See United States v. Ferraro, 992 F.2d 10, 11-12 (2d Cir.1993) (per curiam).

The appeal is DISMISSED.

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54 F. App'x 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-portee-ca2-2002.

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