UNITED STATES v. FISCHER (2021)

Michael L. Fischer filed a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), which the district court denied on May 27, 2020. He did not appeal. In October 2020, Fischer filed a motion for reconsideration citing the COVID-19 pandemic risks in his prison facility. The district court denied this motion as well on January 8, 2021. On January 14, Fischer noted his appeal from both orders. The Government has moved to dismiss Fischer's appeal as untimely.

A criminal defendant must file his notice of appeal within 14 days after the entry of judgment. Fed. R. App. P. 4(b)(1)(A). With or without a motion, upon a showing of excusable neglect or good cause, the district court may grant an extension of up to 30 days to file a notice of appeal. Fed. R. App. P. 4(b)(4). Although the appeal period in a criminal case is a claims-processing rule, not a jurisdictional provision, see United States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009), “[w]hen the Government promptly invokes the rule in response to a late-filed criminal appeal, we must dismiss,” United States v. Oliver, 878 F.3d 120, 123 (4th Cir. 2017). Because Fischer failed to appeal the May 27 order within 14 days and did not move for an extension, his appeal as to that order is untimely. Therefore, we grant the Government's motion to dismiss in part. However, because Fischer's appeal is timely as to the January 8 order, we deny the Government's motion as to this order.

With respect to the January 8, 2021, order, we have reviewed the record included on appeal and find no reversible error. Accordingly, we affirm this order. United States v. Fischer, No. 1:14-cr-00595-ELH (D. Md. Jan. 8, 2021). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

DISMISSED IN PART, AFFIRMED IN PART

PER CURIAM:

Dismissed in part and affirmed in part by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.