USCA4 Appeal: 22-4181 Doc: 64 Filed: 09/18/2024 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4181

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SAMSON A. OGUNTUYI,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Julie R. Rubin, District Judge. (1:20-cr-00285-JRR-2)

Submitted: September 5, 2024 Decided: September 18, 2024

Before KING, AGEE, and BENJAMIN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

ON BRIEF: Mirriam Z. Seddiq, SEDDIQ LAW FIRM, Rockville, Maryland, for Appellant. Jason Daniel Medinger, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

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PER CURIAM:

Samson A. Oguntuyi pled guilty, pursuant to a plea agreement, to conspiracy to

commit bank and mail fraud, in violation of

; bank fraud and aiding and

abetting the same, in violation of

, 1344; and aggravated identity theft and

aiding and abetting the same, in violation of

, 1028A(a)(1), (c)(5). On

March 1, 2022, the district court sentenced Oguntuyi to 54 months’ imprisonment, a

downward variance from his advisory Sentencing Guidelines range. And on

March 2, 2022, the district court entered its judgment on the docket. Oguntuyi filed his

notice of appeal on March 23, 2022.

On appeal, counsel filed a brief pursuant to Anders v. California,

(1967), stating that there are no meritorious grounds for appeal but questioning whether

the district court erred by failing to consider one of Oguntuyi’s nonfrivolous arguments for

a lesser sentence and by paraphrasing the special conditions of supervised release.

Oguntuyi filed a pro se supplemental brief raising multiple challenges to his convictions

and sentence. The Government moved to dismiss the appeal as untimely. After reviewing

the parties’ submissions, we deferred ruling on the motion and remanded the case to the

district court to determine whether Oguntuyi had shown excusable neglect or good cause

warranting an extension of the appeal period. The district court found that Oguntuyi had

not shown excusable neglect or good cause and denied his motion for an extension of the

appeal period. Oguntuyi now challenges that decision, arguing, as he did in the district

court, that he is entitled to an extension of the appeal period because counsel rendered

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ineffective assistance by failing to file a notice of appeal after Oguntuyi timely instructed

him to do so.

A criminal defendant must file a notice of appeal within 14 days after the entry of

the judgment. Fed. R. App. P. 4(b)(1)(A)(i). Upon a showing of excusable neglect or good

cause, however, the district court may grant an extension of up to 30 days to file the notice

of appeal. Fed. R. App. P. 4(b)(4). We review a district court’s decision whether to grant

such an extension for an abuse of discretion. See United States v. Breit,

, 528-

29 (4th Cir. 1985). “A district court abuses its discretion when it acts arbitrarily or

irrationally, fails to consider judicially recognized factors constraining its exercise of

discretion, relies on erroneous factual or legal premises, or commits an error of law.”

United States v. Davis,

(4th Cir. 2024) (internal quotation marks

omitted).

Counsel’s failure to file a notice of appeal following a criminal defendant’s

unequivocal and timely request constitutes ineffective assistance of counsel regardless of

the likelihood of success on the merits. United States v. Poindexter,

(4th Cir. 2007); see Roe v. Flores-Ortega,

(2000) (explaining that counsel

“acts in a manner that is professional unreasonable” when he “disregards specific

instructions from the defendant to file a notice of appeal”). Moreover, a waiver of appellate

rights in a plea agreement does not absolve counsel of his duty to file a notice of appeal

upon the defendant’s unequivocal instruction to do so. Poindexter,

.

Where the defendant does not unequivocally instruct counsel to file a notice of

appeal, counsel may still have a duty to consult with the defendant about an appeal. Flores-

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Ortega,

. The duty to consult arises “when there is reason to think either

(1) that a rational defendant would want to appeal (for example, because there are

nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably

demonstrated to counsel that he was interested in appealing.”

. “For an attorney

to ‘consult,’ that attorney must advise the client about the advantages and disadvantages of

an appeal and make reasonable efforts to ascertain the client’s wishes.” Bostick v.

Stevenson,

(4th Cir. 2009).

Here, the parties dispute the date on which Oguntuyi unequivocally requested that

counsel file a notice of appeal. We conclude that the district court did not abuse its

discretion in finding that Oguntuyi did not render such an unequivocal request until March

18, 2022, two days after the expiration of the appeal period. Oguntuyi contends that his

March 1 email to counsel served as an unequivocal request for an appeal, but we conclude

that the district court did not abuse its discretion in finding that this email was ambiguous

and that counsel reasonably construed the email as an expression of Oguntuyi’s interest in

appealing. The March 1 email, therefore, triggered counsel’s duty to consult with Oguntuyi

about the propriety of an appeal, which he did.

Because “the Government promptly invoke[d] [Rule 4(b)] in response to a late-filed

criminal appeal,” and the district court did not abuse its discretion in denying Oguntuyi’s

motion for an extension of the appeal period, “we must dismiss.” United States v. Oliver,

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(4th Cir. 2017). Accordingly, we grant the Government’s motion and

dismiss the appeal. ∗ We deny Oguntuyi’s motion to substitute counsel.

This court requires that counsel inform Oguntuyi, in writing, of the right to petition

the Supreme Court of the United States for further review. If Oguntuyi requests that a

petition be filed, but counsel believes that such a petition would be frivolous, then counsel

may move in this court for leave to withdraw from representation. Counsel’s motion must

state that a copy thereof was served on Oguntuyi. 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

∗ Because we conclude that the appeal is untimely, we need not consider whether the appeal is barred by the appellate waiver in Oguntuyi’s plea agreement.

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