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United States v. Oliver

United States Court of Appeals, Fourth Circuit

December 20, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
LEONARD OLIVER, Defendant-Appellant.

          Argued: September 15, 2017

          Amended: December 20, 2017

         Appeal from the United States District Court for the District of South Carolina, at Orangeburg. Margaret B. Seymour, Senior District Judge. (5:11-cr-00453-MBS-1)

         ARGUED:

          Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant.

          John David Rowell, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

         ON BRIEF:

          Beth Drake, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

          Before GREGORY, Chief Judge, WYNN, and DIAZ, Circuit Judges.

         Dismissed by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn and Judge Diaz joined.

          GREGORY, Chief Judge.

         This case addresses our authority to dismiss sua sponte a criminal appeal as untimely under Federal Rule of Appellate Procedure 4(b)(1)(A). Leonard Oliver appealed his criminal conviction years after the Rule 4(b)(1)(A) filing deadline and nearly three months after the district court denied his motion to vacate the conviction under 28 U.S.C. § 2255. The Government failed to object to the appeal's untimeliness. It is now for this Court to decide whether to proceed to the merits.

         We conclude that this Court has the authority to dismiss untimely criminal appeals sua sponte but that it should exercise that authority only in extraordinary circumstances. Given the procedural history of Oliver's case, we find that such extraordinary circumstances are present here and dismiss the appeal.

         I.

         Leonard Oliver pleaded guilty to attempt to possess with intent to distribute 500 grams or more of cocaine and was sentenced to ten years in prison, the mandatory minimum sentence for the offense given his criminal record. See 21 U.S.C. §§ 841(b)(1)(B), 846.[1]The district court entered its judgment on September 30, 2011. The following year, Oliver filed a timely pro se motion to vacate the conviction and sentence under 28 U.S.C. § 2255 based on three ineffective-assistance-of-counsel claims. Oliver v. United States, No. 5:11-435, 2014 WL 5506758, at ...


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