United States v. Portee

SUMMARY ORDER

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the appeal be and it hereby is DISMISSED.

Appellant Jerome Frazier appeals the district court’s (Buchwald, J.) decision, under Section 5G1.3(c) of the Sentencing Guidelines, to make his federal sentence run consecutively to the undischarged term of a state sentence for another crime. The district court filed its judgment on April 24, 2002. Frazier’s notice of appeal is dated May 20, 2002. The appeal was not submitted within the ten-day window mandated by Fed. R.App. P. 4(b). There is no indication in the record that any of Rule 4’s exceptions to the ten-day rule apply in this case. Accordingly, we lack jurisdiction to hear the appeal. See United States v. Outen, 286 F.3d 622, 630 (2d Cir. 2002) (“[N]ot only are the time limits of Fed. RApp. P. 4 mandatory and jurisdictional, these time limits are the one procedural area which courts of appeal are expressly forbidden from altering or suspending in an individual case.”) (internal citations and quotation marks omitted). That the district court allegedly failed to advise the defendant of his right to appeal does not change this jurisdictional fact; the defendant’s remedy, if any, may be pursued through a habeas action pursuant to 28 U.S.C. § 2255. See United States v. Ferraro, 992 F.2d 10, 11-12 (2d Cir. 1993) (per curiam).

The appeal is DISMISSED.