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United States v. Hyman

United States Court of Appeals, Fourth Circuit

January 22, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
ADRIAN DEMOND HYMAN, Defendant-Appellant.

          Argued: October 24, 2017

         Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Loretta C. Biggs, District Judge. (1:15-cr-00311-LCB-1)

         ARGUED:

          Sarah Marie Powell, DUKE UNIVERSITY SCHOOL OF LAW, Durham, North Carolina, for Appellant.

          Vijay Shanker, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

         ON BRIEF:

          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.

          Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.

          AGEE, CIRCUIT JUDGE.

         Adrian 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.

         I.

         Hyman 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.[1] This Court appointed counsel and ordered briefing. Hyman filed his opening brief and joint appendix on February 13, 2017.

         On 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.

         In its 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 ...


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