Petition for Writ of Certiorari — Adrian Demond Hyman, Petitioner v. United States

No. ____

IN THE

SUPREME COURT OF THE UNITED STATES

____________________

Adrian Hyman,

Petitioner,

v.

United States of America,

Respondent.

____________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

____________________

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

_____________________

Sarah M. Powell

210 Science Drive

Durham, NC 27708

(919) 245-1058

spowell@law.duke.edu

CJA-Appointed Counsel for

Petitioner Adrian Hyman

APPENDIX

APPENDIX

Appendix A

Amended Decision and Judgment in the Court of

Appeals for the Fourth Circuit (March 9, 2018) ........................ 1a

Appendix B

Order Granting Hyman Petition for Rehearing in the

Court of Appeals for the Fourth Circuit (March 9, 2018) ....... 10a

Appendix C

Decision in the Court of Appeals for the Fourth Circuit

(January 22, 2018) .................................................................... 12a

Appendix D

Relevant Statutory and Rules Provisions ................................ 20a

18 U.S.C. § 3742

Fed. R. App. P. 4(b)(1)

4th Cir. R. 27(f)

Fed. Cir. R. 27(f), (g)

D.C. Cir. R. 27(g)(1), (h)(1), (h)(4)

1st Cir. R. 27.0(c)

2d Cir. R. 27.1(f)

3d Cir. R. 27.4(b)

6th Cir. R. 27(d)

8th Cir. R. 47A(b)

10th Cir. R. 27.3

Appendix E

Docket of Court of Appeals, Case No. 16-4771 ........................ 27a

Appendix A

1a

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ON REHEARING

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-4771

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ADRIAN DEMOND HYMAN,

Defendant – Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at

Greensboro. Loretta C. Biggs, District Judge. (1:15-cr-00311-LCB-1)

Argued: October 24, 2017

Decided: March 9, 2018

Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.

Motion to dismiss granted by published opinion. Judge Agee wrote the opinion, in which

Judge Wilkinson and Judge Duncan joined.

ARGUED: Sarah Marie Powell, DUKE UNIVERSITY SCHOOL OF LAW, Durham,

North Carolina, for Appellant. Vijay Shanker, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Kenneth A. Blanco, Acting

Assistant Attorney General, Trevor N. McFadden, Deputy Assistant Attorney General,

Appellate Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C.; Sandra J. Hairston, Acting United States Attorney, Kyle David

Pousson, Assistant United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Greensboro, North Carolina, for Appellee.

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AGEE, Circuit Judge:

Adrian Demond Hyman filed his notice of appeal late in violation of the Federal

Rules of Appellate Procedure. In response, the Government filed a motion to dismiss the

appeal due to his failure to meet the requirement for timely filing. Hyman contends the

Government was tardy in filing the motion to dismiss and that delay effectively cures any

failure to observe the requirements of the Rules on his part. For the reasons discussed

below, we find Hyman’s argument to be without merit and grant the Government’s

motion to dismiss the appeal.

I.

Hyman pleaded guilty in the United States District Court for the Middle District of

North Carolina to one count of distribution of cocaine hydrochloride in violation of 21

U.S.C. § 841(a)(1), (b)(1)(C). In a judgment order filed June 27, 2016, the court

sentenced Hyman to fifty-seven months’ imprisonment with three years of supervised

release. On November 22, 2016, Hyman filed a pro se notice of appeal challenging his

sentence. 1 This Court appointed counsel and ordered briefing. Hyman filed his opening

brief and joint appendix on February 13, 2017.

On March 2, 2017, the Government filed a motion to dismiss the appeal and

suspend briefing, and we suspended briefing pending our ruling on the motion to dismiss.

In its motion, the Government argued that Hyman had violated Federal Rule of Appellate

Procedure 4(b)(1)(A) by failing to file a notice of appeal within fourteen days of the

1

The notice of appeal was dated November 2, 2016, and the envelope was postmarked on

November 15, 2016.

2

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district court’s judgment order and that delinquency required dismissal of the appeal.

Hyman responded that the Court should allow the untimely appeal because the

Government unnecessarily delayed its filing of the motion to dismiss until after he had

filed his opening brief. The Government did not reply. We calendared the appeal and

motion to dismiss for oral argument and resumed the briefing schedule.

In its response brief on appeal, the Government specifically argued that it was

permitted to file a motion to dismiss pursuant to our Local Rule 27(f). Hyman did not

respond to this contention in his reply brief. We heard oral argument and now grant the

Government’s motion to dismiss. We have jurisdiction pursuant to 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a).

II.

Rule 3(a)(1) of the Federal Rules of Appellate Procedure mandates the timely

filing of a notice of appeal in accordance with Rule 4. In turn, Rule 4(b)(1)(A) requires a

criminal defendant to file his notice of appeal within fourteen days of the entry of the

district court’s judgment of conviction. 2 Since Hyman’s final order of conviction was

entered in the district court on June 27, 2016, he was required to file his notice of appeal

no later than July 11, 2016. See Fed. R. App. P. 4(b)(1)(A). Consequently, Hyman’s

notice of appeal filed November 22, 2016, and dated November 2, 2016, was over three

months late.

2

Rule 4(b)(3) extends the time to file to fourteen days from the resolution of certain posttrial motions, and Rule 4(b)(4) also permits the district court—upon motion or sua sponte—to

extend the filing period by thirty days “[u]pon a finding of excusable neglect or good cause.”

Neither rule applies in this case.

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The parties agree that the late filing of a notice of appeal does not deprive the

Court of subject matter jurisdiction, but Rule 4 is a mandatory claim-processing rule. See

United States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009) (holding that a violation of

Rule 4(b) does not deprive the Court of jurisdiction); see also Manrique v. United States,

581 U.S. __, 137 S. Ct. 1266, 1271 (2017) (refusing to determine whether Rule 4 is

jurisdictional but stating that “[t]he requirement that a defendant file a timely notice of

appeal . . . is at least a mandatory claim-processing rule”). A mandatory claim-processing

rule—like Rule 4(b)(1)(A)—is inflexible “but ‘can nonetheless be forfeited if the party

asserting the rule waits too long to raise the point.’” Eberhart v. United States, 546 U.S.

12, 15 (2005) (per curiam) (quoting Kontrick v. Ryan, 540 U.S. 443, 456 (2004)).

In addition to the Federal Rules of Appellate Procedure, our Court has

promulgated Local Rules that also apply to cases in this Circuit. See Fed. R. App. P.

47(a) (permitting each court of appeals to, “after giving appropriate public notice and

opportunity for comment, make and amend rules governing its practice”). Local Rule

27(f) states, “Motions to dismiss based upon the ground that the appeal is not within the

jurisdiction of the Court or for other procedural grounds may be filed at any time.”

Local Rule 27(f) is a broad rule that allows a party to move to dismiss (1) on

procedural grounds, and (2) at any time. We apply the rule in accordance with its plain

language. See United States v. Shank, 395 F.3d 466, 469 (4th Cir. 2005) (first rejecting

the appellant’s arguments due to “the plain language of the rule”). Local Rule 27(f)

clearly and unambiguously allows a party to file a motion to dismiss on procedural

grounds at any time.

4

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Because we are required to strictly apply claim-processing rules if they are timely

raised, and because our Local Rules as currently written permit a party to raise the

timeliness issue at any time, we grant the Government’s motion to dismiss. Eberhart, 546

U.S. at 18 (recognizing that “when the Government objected to a filing untimely under

[Federal Rule of Criminal Procedure 37, the predecessor to Federal Rule of Appellate

Procedure 4(b)], the court’s duty to dismiss the appeal was mandatory”). In fact, if we

were to deny its motion to dismiss, we would in effect be sanctioning the Government for

following our own Rule. Under the Federal Rules of Appellate Procedure, we cannot do

so. See Fed. R. App. P. 47(b) (“No sanction or other disadvantage may be imposed for

noncompliance with any requirement not in federal law, federal rules, or the local circuit

rules unless the alleged violator has been furnished in the particular case with actual

notice of the requirement.”).

In his response to the Government’s motion to dismiss, Hyman cites to our

precedent for the proposition that a party must raise the timeliness issue as early as

possible. See Ga. Pac. Consumer Prods., LP v. Von Drehle Corp., 710 F.3d 527, 534 (4th

Cir. 2013); Peterson v. Air Line Pilots Ass’n, Int’l, 759 F.2d 1161, 1164 (4th Cir. 1985).

These

cases,

however,

address

affirmative

defenses

at

trial,

not

appellate

counterarguments. Hyman also relies on cases from the Seventh and D.C. Circuits to

argue that the Government should have filed its motion before Hyman filed his opening

brief. See Ramos v. Ashcroft, 371 F.3d 948, 950 (7th Cir. 2004); Miss. River

Transmission Corp. v. FERC, 969 F.2d 1215, 1217 n.2 (D.C. Cir. 1992). However, the

rules of those circuits regarding motions to dismiss differ from our own and have no

5

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application to cases in this Circuit, which are subject to the Local Rules of the Fourth

Circuit. 3

Hyman did not address the application of Local Rule 27(f) in his briefs, even after

the Government cited to the Rule in its brief as the basis for granting the motion to

dismiss the appeal. When asked at oral argument to articulate a standard for establishing

the point at which a motion to dismiss would be untimely and deemed waived, Hyman

stated only that the Government was simply too late in this case. Hyman’s difficulty in

articulating a standard reflects the frailty of attempting to insert a nebulous equity

argument in the face of a clear, mandatory claim-processing rule. Moreover, Hyman

never identified any prejudice he suffered by virtue of the timing of the Government’s

motion to dismiss.

Finally, our recent decision in United States v. Oliver, __ F.3d __, 2017 WL

6505851 (4th Cir. Dec. 20, 2017), is not inapposite. In that case, the Court determined the

conditions necessary to warrant the exercise of its inherent power sua sponte under Local

Rule 27(f), which states in pertinent part, “The Court may also sua sponte summarily

dispose of any appeal at any time.” Within its analysis, the Court addressed when a party

may file a motion to dismiss, stating, “[I]f the [respondent] fails to object promptly to an

appeal’s untimeliness in either its merits brief or an earlier motion to dismiss, it generally

forfeits the right to do so.” Oliver, 2017 WL 6505851, at *2. The Court, however,

3

The D.C. Circuit requires a party to file a motion to dismiss within forty-five days of the

docketing of the appeal, and that deadline is mentioned in the Mississippi River Transmission

Corp. case. See D.C. Cir. R. 27(g)(1). The Seventh Circuit has no rule regarding motions to

dismiss and is therefore free to fashion case-specific rules. By contrast, we are constrained by

our Local Rule 27(f).

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recognized the broad language of Local Rule 27(f) in allowing a party to file a motion to

dismiss “at any time” and declined to decide the limits of that part of the Rule, although it

did determine that the Government had forfeited its right to move for dismissal because it

did not object to the untimely appeal “until well after the merits briefing.” Id. at *2 & n.2.

As in Oliver, we decline to determine the boundaries of Local Rule 27(f). Regardless,

under whatever limitations may cabin the Rule, the Government here filed its motion to

dismiss for untimeliness well within any limits recognized in Oliver because the

Government raised the dismissal argument before filing its response brief and within that

brief. Other than his argument that the Government waived the right to file the motion to

dismiss by virtue of the time of its filing, Hyman raises no other arguments as to the

motion to dismiss.

For all these reasons, we conclude that the Government’s motion to dismiss was

timely: “The court of appeals may, in its discretion, overlook defects in a notice of appeal

other than the failure to timely file a notice.” Manrique, 137 S. Ct. at 1274 (second

emphasis added). Therefore, the Government’s motion to dismiss Hyman’s untimely

appeal is granted. The appeal is dismissed.

DISMISSED

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Total Pages:(3 of 3)

FILED: March 9, 2018

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

___________________

No. 16-4771

(1:15-cr-00311-LCB-1)

___________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

ADRIAN DEMOND HYMAN

Defendant - Appellant

___________________

JUDGMENT

___________________

In accordance with the decision of this court, this appeal is dismissed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

/s/ PATRICIA S. CONNOR, CLERK

9a

Appendix B

10a

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FILED: March 9, 2018

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

___________________

No. 16-4771

(1:15-cr-00311-LCB-1)

___________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

ADRIAN DEMOND HYMAN

Defendant - Appellant

___________________

ORDER

___________________

Upon consideration of appellant’s petition for rehearing and rehearing en

banc, the court grants panel rehearing and issues an amended opinion on rehearing.

The petition for rehearing en banc is denied, no poll having been requested

pursuant to Fed. R. App. P. 35(f).

Entered at the direction of Judge Agee with the concurrence of Judge

Wilkinson and Judge Duncan.

For the Court

/s/ Patricia S. Connor, Clerk

11a

Appendix C

12a

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-4771

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ADRIAN DEMOND HYMAN,

Defendant – Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at

Greensboro. Loretta C. Biggs, District Judge. (1:15-cr-00311-LCB-1)

Argued: October 24, 2017

Decided: January 22, 2018

Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.

Motion to dismiss granted by published opinion. Judge Agee wrote the opinion, in which

Judge Wilkinson and Judge Duncan joined.

ARGUED: Sarah Marie Powell, DUKE UNIVERSITY SCHOOL OF LAW, Durham,

North Carolina, for Appellant. Vijay Shanker, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Kenneth A. Blanco, Acting

Assistant Attorney General, Trevor N. McFadden, Deputy Assistant Attorney General,

Appellate Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C.; Sandra J. Hairston, Acting United States Attorney, Kyle David

Pousson, Assistant United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Greensboro, North Carolina, for Appellee.

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AGEE, Circuit Judge:

Adrian Demond Hyman filed his notice of appeal late in violation of the Federal

Rules of Appellate Procedure. In response, the Government filed a motion to dismiss the

appeal due to his failure to meet the requirement for timely filing. Hyman contends the

Government was tardy in filing the motion to dismiss and that delay effectively cures any

failure to observe the requirements of the Rules on his part. For the reasons discussed

below, we find Hyman’s argument to be without merit and grant the Government’s

motion to dismiss the appeal.

I.

Hyman pleaded guilty in the United States District Court for the Middle District of

North Carolina to one count of distribution of cocaine hydrochloride in violation of 21

U.S.C. § 841(a)(1), (b)(1)(C). In a judgment order filed June 27, 2016, the court

sentenced Hyman to fifty-seven months’ imprisonment with three years of supervised

release. On November 22, 2016, Hyman filed a pro se notice of appeal challenging his

sentence. 1 This Court appointed counsel and ordered briefing. Hyman filed his opening

brief and joint appendix on February 13, 2017.

On March 2, 2017, the Government filed a motion to dismiss the appeal and

suspend briefing, and we suspended briefing pending our ruling on the motion to dismiss.

In its motion, the Government argued that Hyman had violated Federal Rule of Appellate

1

The notice of appeal was dated November 2, 2016, and the envelope was postmarked on

November 15, 2016.

2

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Procedure 4(b)(1)(A) by failing to file a notice of appeal within fourteen days of the

district court’s judgment order and that delinquency required dismissal of the appeal.

Hyman responded that the Court should allow the untimely appeal because the

Government unnecessarily delayed its filing of the motion to dismiss until after he had

filed his opening brief. The Government did not reply. We calendared the appeal and

motion to dismiss for oral argument and resumed the briefing schedule.

In its response brief on appeal, the Government specifically argued that it was

permitted to file a motion to dismiss pursuant to our Local Rule 27(f). Hyman did not

respond to this contention in his reply brief. We heard oral argument and now grant the

Government’s motion to dismiss. We have jurisdiction pursuant to 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a).

II.

Rule 3(a)(1) of the Federal Rules of Appellate Procedure mandates the timely

filing of a notice of appeal in accordance with Rule 4. In turn, Rule 4(b)(1)(A) requires a

criminal defendant to file his notice of appeal within fourteen days of the entry of the

district court’s judgment of conviction. 2 Since Hyman’s final order of conviction was

entered in the district court on June 27, 2016, he was required to file his notice of appeal

no later than July 11, 2016. See Fed. R. App. P. 4(b)(1)(A). Consequently, Hyman’s

2

Rule 4(b)(3) extends the time to file to fourteen days from the resolution of certain posttrial motions, and Rule 4(b)(4) also permits the district court—upon motion or sua sponte—to

extend the filing period by thirty days “[u]pon a finding of excusable neglect or good cause.”

Neither rule applies in this case.

3

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notice of appeal filed November 22, 2016, and dated November 2, 2016, was over three

months late.

The parties agree that the late filing of a notice of appeal does not deprive the

Court of subject matter jurisdiction, but Rule 4 is a mandatory claim-processing rule. See

United States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009) (holding that a violation of

Rule 4(b) does not deprive the Court of jurisdiction); see also Manrique v. United States,

581 U.S. __, 137 S. Ct. 1266, 1271 (2017) (refusing to determine whether Rule 4 is

jurisdictional but stating that “[t]he requirement that a defendant file a timely notice of

appeal . . . is at least a mandatory claim-processing rule”). A mandatory claim-processing

rule—like Rule 4(b)(1)(A)—is inflexible “but ‘can nonetheless be forfeited if the party

asserting the rule waits too long to raise the point.’” Eberhart v. United States, 546 U.S.

12, 15 (2005) (per curiam) (quoting Kontrick v. Ryan, 540 U.S. 443, 456 (2004)).

In addition to the Federal Rules of Appellate Procedure, our Court has

promulgated Local Rules that also apply to cases in this Circuit. See Fed. R. App. P.

47(a) (permitting each court of appeals to, “after giving appropriate public notice and

opportunity for comment, make and amend rules governing its practice”). Local Rule

27(f) states, “Motions to dismiss based upon the ground that the appeal is not within the

jurisdiction of the Court or for other procedural grounds may be filed at any time.”

Local Rule 27(f) is a broad rule that allows a party to move to dismiss (1) on

procedural grounds, and (2) at any time. We apply the rule in accordance with its plain

language. See United States v. Shank, 395 F.3d 466, 469 (4th Cir. 2005) (first rejecting

the appellant’s arguments due to “the plain language of the rule”). Local Rule 27(f)

4

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clearly and unambiguously allows a party to file a motion to dismiss on procedural

grounds at any time.

Because we are required to strictly apply claim-processing rules if they are timely

raised, and because our Local Rules permit a party to raise the timeliness issue at any

time, we grant the Government’s motion to dismiss. Eberhart, 546 U.S. at 18

(recognizing that “when the Government objected to a filing untimely under [Federal

Rule of Criminal Procedure 37, the predecessor to Federal Rule of Appellate Procedure

4(b)], the court’s duty to dismiss the appeal was mandatory”). In fact, if we were to deny

its motion to dismiss, we would in effect be sanctioning the Government for following

our own Rule. Under the Federal Rules of Appellate Procedure, we cannot do so. See

Fed. R. App. P. 47(b) (“No sanction or other disadvantage may be imposed for

noncompliance with any requirement not in federal law, federal rules, or the local circuit

rules unless the alleged violator has been furnished in the particular case with actual

notice of the requirement.”).

In his response to the Government’s motion to dismiss, Hyman cites to our

precedent for the proposition that a party must raise the timeliness issue as early as

possible. See Ga. Pac. Consumer Prods., LP v. Von Drehle Corp., 710 F.3d 527, 534 (4th

Cir. 2013); Peterson v. Air Line Pilots Ass’n, Int’l, 759 F.2d 1161, 1164 (4th Cir. 1985).

These

cases,

however,

address

affirmative

defenses

at

trial,

not

appellate

counterarguments. Hyman also relies on cases from the Seventh and D.C. Circuits to

argue that the Government should have filed its motion before Hyman filed his opening

brief. See Ramos v. Ashcroft, 371 F.3d 948, 950 (7th Cir. 2004); Miss. River

5

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Transmission Corp. v. FERC, 969 F.2d 1215, 1217 n.2 (D.C. Cir. 1992). However, the

rules of those circuits regarding motions to dismiss differ from our own and have no

application to cases in this Circuit, which are subject to the Local Rules of the Fourth

Circuit. 3

Hyman did not address the application of Local Rule 27(f) in his briefs, even after

the Government cited to the Rule in its brief as the basis for granting the motion to

dismiss the appeal. When asked at oral argument to articulate a standard for establishing

the point at which a motion to dismiss would be untimely and deemed waived, Hyman

stated only that the Government was simply too late in this case. Hyman’s difficulty in

articulating a standard reflects the frailty of attempting to insert a nebulous equity

argument in the face of a clear, mandatory claim-processing rule. Moreover, Hyman

never identified any prejudice he suffered by virtue of the timing of the Government’s

motion to dismiss.

Finally, our recent decision in United States v. Oliver, __ F.3d __, 2017 WL

6505851 (4th Cir. Dec. 20, 2017), is not inapposite. In that case, the Court determined the

conditions necessary to warrant the exercise of its inherent power sua sponte under Local

Rule 27(f), which states in pertinent part, “The Court may also sua sponte summarily

dispose of any appeal at any time.” Within its analysis, the Court addressed when a party

3

The D.C. Circuit requires a party to file a motion to dismiss within forty-five days of the

docketing of the appeal, and that deadline is mentioned in the Mississippi River Transmission

Corp. case. See D.C. Cir. R. 27(g)(1). The Seventh Circuit has no rule regarding motions to

dismiss and is therefore free to fashion case-specific rules. By contrast, we are constrained by

our Local Rule 27(f).

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may file a motion to dismiss, stating, “[I]f the [respondent] fails to object promptly to an

appeal’s untimeliness in either its merits brief or an earlier motion to dismiss, it generally

forfeits the right to do so.” Oliver, 2017 WL 6505851, at *2. The Court, however,

recognized the broad language of Local Rule 27(f) in allowing a party to file a motion to

dismiss “at any time” and declined to decide the limits of that part of the Rule, although it

did determine that the Government had forfeited its right to move for dismissal because it

did not object to the untimely appeal “until well after the merits briefing.” Id. at *2 & n.2.

As in Oliver, we decline to determine the boundaries of Local Rule 27(f). Regardless,

under whatever limitations may cabin the Rule, the Government here filed its motion to

dismiss for untimeliness well within any limits recognized in Oliver because the

Government raised the dismissal argument before filing its response brief and within that

brief. Other than his argument that the Government waived the right to file the motion to

dismiss by virtue of the time of its filing, Hyman raises no other arguments as to the

motion to dismiss.

For all these reasons, we conclude that the Government’s motion to dismiss was

timely: “The court of appeals may, in its discretion, overlook defects in a notice of appeal

other than the failure to timely file a notice.” Manrique, 137 S. Ct. at 1274 (second

emphasis added). Therefore, the Government’s motion to dismiss Hyman’s untimely

appeal is granted. The appeal is dismissed.

DISMISSED

7

Appendix D

20a

18 U.S.C. § 3742

(a) APPEAL BY A DEFENDANT.—A defendant may file a notice of appeal in the

district court for review of an otherwise final sentence if the sentence—

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing

guidelines; or

(3) is greater than the sentence specified in the applicable guideline range to

the extent that the sentence includes a greater fine or term of

imprisonment, probation, or supervised release than the maximum

established in the guideline range, or includes a more limiting condition of

probation or supervised release under section 3563(b)(6) or (b)(11) than the

maximum established in the guideline range; or

(4) was imposed for an offense for which there is no sentencing guideline and

is plainly unreasonable.

...

(d) RECORD ON REVIEW.—If a notice of appeal is filed in the district court pursuant

to subsection (a) or (b), the clerk shall certify to the court of appeals—

(1) that portion of the record in the case that is designated as pertinent by

either of the parties;

(2) the presentence report; and

(3) the information submitted during the sentencing proceeding.

(e) CONSIDERATION.—Upon review of the record, the court of appeals shall

determine whether the sentence—

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing

guidelines;

(3) is outside the applicable guideline range, and

(A) the district court failed to provide the written statement of reasons

required by section 3553(c);

21a

(B) the sentence departs from the applicable guideline range based on a

factor that—

i.

does not advance the objectives set forth in section 3553(a)(2); or

ii.

is not authorized under section 3553(b); or

iii.

is not justified by the facts of the case; or

(C) the sentence departs to an unreasonable degree from the applicable

guidelines range, having regard for the factors to be considered in

imposing a sentence, as set forth in section 3553(a) of this title and the

reasons for the imposition of the particular sentence, as stated by the

district court pursuant to the provisions of section 3553(c); or

(4) was imposed for an offense for which there is no applicable sentencing

guideline and is plainly unreasonable.

Federal Rule of Appellate Procedure 4(b)

Rule 4. Appeal as of Right – When Taken

(b) APPEAL IN A CRIMINAL CASE.

(1) Time for Filing a Notice of Appeal.

(A) In a criminal case, a defendant's notice of appeal must be filed in the

district court within 14 days after the later of:

(i) the entry of either the judgment or the order being appealed; or

(ii) the filing of the government's notice of appeal.

(B) When the government is entitled to appeal, its notice of appeal must

be filed in the district court within 30 days after the later of:

(i) the entry of the judgment or order being appealed; or

(ii) the filing of a notice of appeal by any defendant.

...

(4) Motion for Extension of Time. Upon a finding of excusable neglect or

good cause, the district court may—before or after the time has expired, with

or without motion and notice—extend the time to file a notice of appeal for a

period not to exceed 30 days from the expiration of the time otherwise

prescribed by this Rule 4(b).

22a

Relevant Local Rules for the Fourth, First, Second, Third,

Sixth, Eighth, Tenth, D.C., and Federal Circuits

Fourth Circuit

Local Rule 27(f) Motions for Summary Disposition.

...

Motions to dismiss based upon the ground that the appeal is not

within the jurisdiction of the Court or for other procedural

grounds may be filed at any time. The Court may also sua sponte

summarily dispose of any appeal at any time.

First Circuit

1st Cir. R. 27.0(c)

(c) Summary Disposition. At any time, on such notice as the court

may order, on motion of appellee or sua sponte, the court may

dismiss the appeal or other request for relief or affirm and enforce

the judgment or order below if the court lacks jurisdiction, or if it

shall clearly appear that no substantial question is presented. In

case of obvious error the court may, similarly, reverse. Motions

for such relief should be promptly filed when the occasion

appears.

Second Circuit

2d Cir. R. 27.1(f) Motion to Extend the Time to File a Brief.

...

(1) Extraordinary Circumstance Required. Absent an extraordinary

circumstance, such as serious personal illness or death in counsel’s

immediate family, the court will not grant a motion to extend the

time to file a brief. A deadline for a brief remains in effect unless the

court orders otherwise.

(3) Time to File. A party seeking to extend the time to file a brief

must move as soon as practicable after the extraordinary

circumstance arises.

23a

Third Circuit

3d Cir. R. 27.4(b).

Except for a change in circumstances or a change in law, motions

for summary action or dismissal should be filed before appellant’s

brief is due.

Sixth Circuit

6th Cir. R. 27(d).

Motion to Dismiss. A party may file a motion to dismiss for lack

of jurisdiction. Ordinarily, the court will not grant other motions

to dismiss.

Eighth Circuit

8th Cir. R. 47A: SUMMARY DISPOSITION

(b) On Motion of Parties. The appellee may file a motion to

dismiss a docketed appeal on the ground the appeal is not within

the court’s jurisdiction. Except for good cause or on the motion of

the court, a motion to dismiss based on jurisdiction must be filed

within 14 days after the court has docketed the appeal.

Tenth Circuit

10th Cir. R. 27.3 Summary disposition on motion by a party or the court.

(A) Motions to dismiss or affirm.

(1) Types. A party may file only the following dispositive motions:

...

...

(a) a motion to dismiss the entire case for lack of appellate

jurisdiction or for any other reason a dismissal is permitted by

statute, the Federal Rules of Appellate Procedure or these rules.

(d) a motion by the government to enforce an appeal waiver.

24a

(3) Time to file.

(a) A motion under (A)(1)(a) through (c) should be filed within 14

days after the notice of appeal is filed, unless good cause is shown.

(b) A motion under (A)(1)(d) must be filed within 20 days after:

i.

the district court’s notice, pursuant to 10th Cir. R. 11.1,

that the record is complete, or;

ii.

the district court’s notice that it is transmitting the record

pursuant to 10th Cir. R. 11.2.

(c) Failure to file a timely motion to enforce an appeal waiver does

not preclude a party from raising the issue in a merits brief.

D.C. Circuit

D.C. Cir. R. 27(g)(1)

Any motion which, if granted, would dispose of the appeal or

petition for review in its entirety, or transfer the case to another

court, must be filed within 45 days of the docketing of the case in

this court, unless, for good cause shown, the court grants leave for

a later filing.

D.C. Cir. R. 27(h)(1), (4).

A motion to extend the time for filing motions, responses, and

replies, or to exceed the page limits for such pleadings, must be

filed at least 5 days before the pleading is due.

Motions filed less than 5 days before the due date will be denied

absent exceptional circumstances, except that the clerk may

grant unopposed late filed motions for extension of time for good

cause shown.

25a

Federal Circuit

27(f) Motion to Dismiss or to Remand; Response.

A motion to dismiss for lack of jurisdiction or to remand should be

made as soon after docketing as the grounds for the motion are

known. After the appellant or petitioner has filed the principal

brief, the argument supporting dismissal for lack of jurisdiction

or remand should be made in the brief of the appellee or

respondent. A response in opposition, if any, should be included

in the responsive brief.

Joint or unopposed motions or

stipulations to dismiss or to remand may be made at any time.

27(g) Motion Incorporated in a Brief.

Except as provided in Federal Circuit Rule 27(e) and (f), a motion

must not be incorporated in a brief.

26a

APPENDIX E

27a

PACER fee: Exempt Change

General Docket

United States Court of Appeals for the Fourth Circuit

Court of Appeals Docket #: 16-4771

US v. Adrian Hyman

Appeal From: United States District Court for the Middle District of North Carolina at Greensboro

Fee Status: cja

Docketed: 11/23/2016

Termed: 03/09/2018

Case Type Information:

1) Criminal

2) Direct Criminal

3) null

Originating Court Information:

District: 0418-2 : 1:15-cr-00311-LCB-1

Court Reporter: Jane Calhoun, Official Court Reporter

Court Reporter: Keah Marsh, Court Reporter Coordinator

Court Reporter: Lori Russell, Official Court Reporter

Presiding Judge: Loretta C. Biggs, U. S. District Court Judge

Date Filed: 08/31/2015

Date Order/Judgment:

Date Order/Judgment EOD:

06/27/2016

06/24/2016

Date NOA Filed:

11/22/2016

Date Rec'd COA:

11/22/2016

Prior Cases:

None

Current Cases:

None

UNITED STATES OF AMERICA

Plaintiff - Appellee

Kenneth A. Blanco, Acting Assistant Attorney General

[On Brief]

U. S. DEPARTMENT OF JUSTICE

Criminal Division, Appellate Section

950 Pennsylvania Avenue, NW

Washington, DC 20530-0000

Sandra Jane Hairston

Direct: 336-333-5351

Email: USANCM.ECFCENTRAL@usdoj.gov

[On Brief]

OFFICE OF THE UNITED STATES ATTORNEY

4th Floor

101 South Edgeworth Street

Greensboro, NC 27401-0000

Trevor N. McFadden

[On Brief]

U. S. DEPARTMENT OF JUSTICE

Criminal Division, Appellate Section

950 Pennsylvania Avenue, NW

Washington, DC 20530-0000

Kyle David Pousson, Assistant U. S. Attorney

Direct: 336-333-5351

Email: kyle.pousson@usdoj.gov

[COR NTC Government]

OFFICE OF THE UNITED STATES ATTORNEY

4th Floor

101 South Edgeworth Street

Greensboro, NC 27401-0000

Vijay Shanker

Direct: 202-353-0268

Email: v jay.shanker@usdoj.gov

[COR NTC Government]

U. S. DEPARTMENT OF JUSTICE

Criminal Division, Appellate Section

Room 1264

950 Pennsylvania Avenue, NW

Washington, DC 20530-0000

v.

ADRIAN DEMOND HYMAN

Defendant - Appellant

Sarah Marie Powell

Direct: 919-613-7192

Email: spowell@law.duke.edu

[COR NTC CJA Appointment]