Argued: October 24, 2017
from the United States District Court for the Middle District
of North Carolina, at Greensboro. Loretta C. Biggs, District
Marie Powell, DUKE UNIVERSITY SCHOOL OF LAW, Durham, North
Carolina, for Appellant.
Shanker, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
Kenneth A. Blanco, Acting Assistant Attorney General, Trevor
N. McFadden, Deputy Assistant Attorney General, Appellate
Section, Criminal Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Sandra J. Hairston, Acting United
States Attorney, Kyle David Pousson, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.
WILKINSON, DUNCAN, and AGEE, Circuit Judges.
Demond Hyman filed his notice of appeal late in violation of
the Federal Rules of Appellate Procedure. In response, the
Government filed a motion to dismiss the appeal due to his
failure to meet the requirement for timely filing. Hyman
contends the Government was tardy in filing the motion to
dismiss and that delay effectively cures any failure to
observe the requirements of the Rules on his part. For the
reasons discussed below, we find Hyman's argument to be
without merit and grant the Government's motion to
dismiss the appeal.
pleaded guilty in the United States District Court for the
Middle District of North Carolina to one count of
distribution of cocaine hydrochloride in violation of 21
U.S.C. § 841(a)(1), (b)(1)(C). In a judgment order filed
June 27, 2016, the court sentenced Hyman to fifty-seven
months' imprisonment with three years of supervised
release. On November 22, 2016, Hyman filed a pro se notice of
appeal challenging his sentence. This Court appointed counsel
and ordered briefing. Hyman filed his opening brief and joint
appendix on February 13, 2017.
March 2, 2017, the Government filed a motion to dismiss the
appeal and suspend briefing, and we suspended briefing
pending our ruling on the motion to dismiss. In its motion,
the Government argued that Hyman had violated Federal Rule of
Appellate Procedure 4(b)(1)(A) by failing to file a notice of
appeal within fourteen days of the district court's
judgment order and that delinquency required dismissal of the
appeal. Hyman responded that the Court should allow the
untimely appeal because the Government unnecessarily delayed
its filing of the motion to dismiss until after he had filed
his opening brief. The Government did not reply. We
calendared the appeal and motion to dismiss for oral argument
and resumed the briefing schedule.
response brief on appeal, the Government specifically argued
that it was permitted to file a motion to dismiss pursuant to
our Local Rule 27(f). Hyman did not respond to this
contention in his reply brief. We heard oral argument and now
grant the Government's motion to dismiss. We ...