United States v. Brice

U.S. Court of Appeals for the Fourth Circuit March 14, 2000

Opinion

No. 99-6781

Plaintiff - Appellee,

versus

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry M. Herlong, Jr., District Judge. (CR-92-328)

Submitted: February 22, 2000 Decided: March 14, 2000

Before NIEMEYER and MICHAEL, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Terry Lamar Brice, Appellant Pro Se. David Calhoun Stephens, As- sistant United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Terry Lamar Brice seeks to appeal from an order of the dis-

trict court refusing to construe his motion for certificate of ap-

pealability as a timely notice of appeal. Brice sought to appeal

the denial of a motion to supplement a Fed. R. Crim. P. 33 motion

for new trial, which the district court had already denied. Under

Fed. R. App. P. 4(b), Brice had ten days from entry of that order

on the criminal docket to note his appeal. His motion for certif-

icate of appealability was filed fifty-one days later. Therefore,

the motion could not be construed as a timely notice of appeal, and

the district court did not err in denying Brice’s request to so

construe it. We deny a certificate of appealability and dismiss

the appeal. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.