United States of America v.  DEMETRIUS DAVIS, a/k/a Meatman

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4364 
DEMETRIUS DAVIS, a/k/a Meatman,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson Everett Legg, Chief District Judge.
(CR-97-248-L)
Submitted: October 3, 2003
Decided: October 16, 2003
Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A.,
Elkridge, Maryland, for Appellant. Thomas M. DiBiagio, United
States Attorney, Christine Manuelian, Assistant United States Attor-
ney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

-- 1 of 2 --

OPINION
PER CURIAM:
Demetrius Davis pled guilty on August 30, 1999, to one count of
conspiracy to distribute cocaine and cocaine base, 21 U.S.C. § 846
(2000), and three underlying distribution counts, 21 U.S.C. § 841
(2000). He was sentenced on November 9, 2000, to 210 months of
imprisonment.
Davis did not file a timely appeal of his sentence. On November
8, 2001, Davis filed a 28 U.S.C. § 2255 (2000) motion alleging, inter
alia, ineffective assistance of counsel in that his attorney failed to file
an appeal on his behalf as requested. By order entered April 4, 2003,
the district court granted Davis leave to file a belated criminal appeal
and dismissed his remaining § 2255 claims. Davis filed his appeal on
April 9, 2003.
Criminal defendants have ten days from the entry of the judgment
to file a notice of appeal. Fed. R. App. P. 4(b). Upon a finding of
excusable neglect or good cause, a court may extend the appeal period
for up to thirty days beyond the expiration of the ten-day appeal
period. Fed. R. App. P. 4(b)(4). The appeal periods established by
Rule 4(b) for criminal appeals are mandatory and jurisdictional.
United States v. Raynor, 939 F.2d 191, 197 (4th Cir. 1991).
Where a criminal defendant’s counsel fails to file a direct appeal
as requested, the proper remedy is to vacate the judgment of convic-
tion and re-enter the judgment from which a new appeal may be
taken. United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993). Here,
the district court did not have jurisdiction to grant leave to Davis to
file a belated notice of appeal. Accordingly, we vacate the district
court’s order granting leave to file a belated notice of appeal with
instructions to comply with Peak.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED
2 UNITED STATES v. DAVIS

-- 2 of 2 --