United States of America v. Herbert Lewis Turner

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4240
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HERBERT LEWIS TURNER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson,
District Judge. (5:01-cr-30062-sgw)
Submitted: March 18, 2009 Decided: April 15, 2009
Before TRAXLER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Craig W. Sampson, BARNES & DIEHL, PC, Chesterfield, Virginia,
for Appellant. Nancy Spodick Healey, Assistant United States
Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Herbert Lewis Turner seeks to appeal the district
court’s order revoking his supervised release and sentencing him
to eighteen months’ imprisonment, followed by an additional
eighteen-month term of supervised release. The district court
entered judgment on January 18, 2007. Turner filed a notice of
appeal on February 20, 2007.1 Because Turner failed to file a
timely notice of appeal,2 we remanded the case to the district
court for the limited purpose of determining whether Turner had
shown excusable neglect or good cause to warrant an extension of
time to file a notice of appeal.
Despite an order from the district court directing
Turner to submit a response explaining the reason he failed to
file a timely notice of appeal, Turner filed no explanation.
The court accordingly found that Turner failed to demonstrate
excusable neglect or good cause. See United States v. Turner,
1 The envelope in which the notice was mailed was postmarked
February 20, 2007. Under the “mailbox rule” of Houston v. Lack,
487 U.S. 266 (1988), a document is deemed filed by a prisoner
when it is delivered to prison officials for mailing.
2 In criminal cases, the defendant must file the notice of
appeal within ten days after the entry of judgment. Fed. R.
App. P. 4(b)(1)(A). With or without a motion, upon a showing of
excusable neglect or good cause, the district court may grant an
extension of up to thirty days to file a notice of appeal. Fed.
R. App. P. 4(b)(4); United States v. Reyes, 759 F.2d 351, 353
(4th Cir. 1985).
2

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3
No. 5:01-cr-30062-sgw (W.D. Va. Jan. 13, 2009). The matter is
now before this court for final disposition. In light of
Turner’s failure to file a timely notice of appeal and the
district court’s reasonable determination that Turner failed to
demonstrate excusable neglect or good cause for his late appeal,
we dismiss the appeal as untimely.
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.
DISMISSED

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