Argued: September 15, 2017
Amended: December 20, 2017
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)
Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Columbia, South Carolina, for Appellant.
David Rowell, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.
Drake, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.
GREGORY, Chief Judge, WYNN, and DIAZ, Circuit Judges.
by published opinion. Chief Judge Gregory wrote the opinion,
in which Judge Wynn and Judge Diaz joined.
GREGORY, Chief Judge.
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
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.
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.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 ...