Argued: September 20, 2019
from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony John Trenga,
District Judge. (1:17-cr-00122-AJT-1)
R. THEUER, JAMES R. THEUER, PLLC, NORFOLK, VIRGINIA, FOR
TAFT GRANO, OFFICE OF THE UNITED STATES ATTORNEY, ALEXANDRIA,
VIRGINIA, FOR APPELLEE.
ZACHARY TERWILLIGER, UNITED STATES ATTORNEY, KATHERINE L.
WONG, ASSISTANT UNITED STATES ATTORNEY, OFFICE OF THE UNITED
STATES ATTORNEY, ALEXANDRIA, VIRGINIA, FOR APPELLEE.
GREGORY, Chief Judge, and THACKER and HARRIS, Circuit Judges.
to dismiss appeal granted by published opinion. Judge Harris
wrote the opinion, in which Judge Thacker joined. Chief Judge
Gregory wrote an opinion concurring in part, dissenting in
part, and dissenting in the judgment.
HARRIS, CIRCUIT JUDGE.
Russell Marsh pleaded guilty to identity theft and fraud. At
sentencing, the district court failed to advise Marsh of his
right to appeal, in what Marsh identifies as a violation of
Rule 32(j) of the Federal Rules of Criminal Procedure. Marsh
ultimately did file an appeal, but not until well after the
time limit for that filing had expired under Rule 4(b) of the
Federal Rules of Appellate Procedure. The government promptly
moved to dismiss Marsh's appeal as untimely.
contends that his late filing should be excused by the
district court's violation of Rule 32(j). We disagree.
Because Rule 4(b)'s deadline is a mandatory
claim-processing rule that must be strictly applied, the
district court's error cannot excuse Marsh's untimely
filing of his notice of appeal, and equitable doctrines are
unavailable to extend the deadline. Our conclusion, however,
does not render Rule 32(j) a nullity, as Marsh suggests;
instead, Marsh may seek to remedy the district court's
error in collateral proceedings. Accordingly, we grant the
government's motion to dismiss Marsh's appeal.
was indicted on three charges: bank fraud, in violation of 18
U.S.C. § 1344; aggravated identity theft, in violation
of 18 U.S.C. § 1028A; and wire fraud, in violation of 18
U.S.C. § 1343. The government alleged that Marsh used
his position as a loan officer at two federally insured banks
to approve fraudulent loans to companies in which he had a
personal stake, creating false documents and bank records in
and the government entered into a written plea agreement,
under which Marsh pleaded guilty to all three counts against
him. The agreement also included an appellate waiver, in
which Marsh waived his "right to appeal the conviction
and any sentence within the statutory maximum . . . on any
ground whatsoever other than an ineffective assistance of
counsel claim that is cognizable on direct appeal." J.A.
13-14. At his plea colloquy, Marsh acknowledged that he
understood the appellate waiver in his plea agreement and
that he had spoken with his lawyer about whether he should
waive his right to appeal.
was sentenced on November 17, 2017. Following argument and
rulings on Marsh's objections, the district court adopted
the Probation Office's Sentencing Guidelines calculation,
which led to a range of 78 to 97 months on the two fraud
charges followed by a 24-month consecutive sentence for
identity theft. The district court then imposed a
below-Guidelines sentence of 54 months for the two fraud
charges and a consecutive 24-month sentence on the identity
theft charge, for a total of 78 months imprisonment, to be
followed by a three-year term of supervised release.
Critically, at no point during sentencing did the district
court advise Marsh of his remaining rights to appeal, as
required by Rule 32(j). See Fed. R. Crim. P.
32(j)(1)(B) ("After sentencing - regardless of the
defendant's plea - the court must advise the defendant of
any right to appeal the sentence.").
court entered judgment the same day it sentenced Marsh, on
November 17, 2017. Under Rule 4(b) of the Federal Rules of
Appellate Procedure, a defendant's notice of appeal in a
criminal case generally must be filed within 14 days of the
entry of judgment. See Fed. R. App. P.
4(b)(1)(A)(i). It was not until August 15, 2018, however -
283 days after the entry of judgment - that Marsh noted his
pro se appeal by submitting it through the mail
system of the Bureau of Prisons. The government promptly
filed a motion to dismiss Marsh's appeal as untimely,
which Marsh opposed. This court then issued an order for
supplemental briefing on the issue of timeliness, directing
the parties to address whether the district court's
non-compliance with Rule 32(j) or equitable tolling excused
Marsh's late filing of his notice of appeal.
outset, the government contends that the premise of this case
is mistaken: The district court's failure to advise Marsh
of his right to appeal, according to the government, was not
a Rule 32(j) error at all. Under Rule 32(j)(1)(B), when a
defendant pleads guilty, the district court, after imposing
sentence, "must advise the defendant of any right to
appeal the sentence." Fed. R. Crim. P. 32(j)(1)(B). But
here, the government argues, no discussion of Marsh's
appellate rights was required, because Marsh knowingly and
voluntarily waived the right to appeal in his plea agreement.
first problem for the government's argument is that
Marsh's plea agreement expressly preserves his right to
appeal his sentence based on "an ineffective assistance
of counsel claim." J.A. 13-14. Because the text of Rule
32 requires the district court to "advise the defendant
of any right to appeal the sentence," Fed. R.
Crim. P. 32(j)(1)(B) (emphasis added), the district court was
required to advise Marsh of his right, under the plain terms
of his plea agreement, to an appeal for ineffective
assistance. As the Supreme Court has cautioned, district
courts "must be meticulous and precise in following each
of the requirements of Rule 32 in every case," see
Peguero v. United States, 526 U.S. 23, 27 (1999)
(addressing failure to advise of appeal rights), and that
includes advising a defendant of even a narrow right to
the scope of the district court's error limited to the
appeal rights expressly reserved in the appeal waiver. As we
have held, a defendant who waives the right to appeal
nevertheless "retains the right to obtain appellate
review of his sentence on certain limited grounds," even
if those grounds are not specified in the plea
agreement. United States v. Attar, 38 F.3d 727, 732
(4th Cir. 1994). No appeal waiver, for instance, can bar a
defendant's right to challenge his sentence as outside a
statutorily prescribed maximum, "or based on a
constitutionally impermissible factor such as race."
United States v. Marin, 961 F.2d 493, 496 (4th Cir.
1992); see also Attar, 38 F.3d at 732-33 (plea
waiver does not bar appellate review of post-plea violation
of right to counsel). And, of course, Marsh retained the
right to argue on appeal that he did not enter into his
appeal waiver knowingly and voluntarily, rendering that
waiver invalid. See United States v. Johnson, 410
F.3d 137, 151 (4th Cir. 2005). In short, "[a]n appeal
waiver does not always preclude an appeal,"
id., and the district court was required by Rule
32(j) to inform Marsh of his remaining, though strictly
limited, right to appeal.
think the government's contrary argument is inconsistent
not only with Rule 32(j)'s text, but also with the
importance the Supreme Court has attached to "[t]he
requirement that the district court inform a defendant of his
right to appeal." Peguero, 526 U.S. at 26. It
is not enough, the Court has explained, that the defendant is
somehow made aware of his right to appeal, though that of
course is critical. What is equally vital under Rule 32(j) is
that advice about appeal rights "comes from the
court itself." Id. at 27 (emphasis added).
Relying on defense counsel is not a substitute, in part
because there may be practical obstacles to communication
once the defendant is taken into custody or if the
post-sentencing "relationship between the defendant and
the attorney [is] strained." Id. at 26. But
also, as the Court emphasized in Peguero, requiring
that the district court itself advise a defendant of
"any right to appeal" disabuses the defendant of
any concern he otherwise might have that the judge -
"who may later rule upon a motion to modify or reduce
the sentence" - will see the filing of an appeal as an
"affront." Id. at 26-27.
32(j), in other words, serves "important functions"
that include but go beyond ensuring a defendant's
knowledge of "any right to appeal." Id. at
26. Because the district court did not advise Marsh that he
retained the right to appeal on certain limited grounds, it
failed to comply with Rule 32(j).
brings us to the question on which we ordered briefing:
Whether a district court's error in failing to inform a
defendant at sentencing of a right to appeal can excuse a
defendant's late filing of a notice of appeal under Rule
4(b). We conclude ...