Opinion
20-7895
10-11-2022
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRANDON KENDRICK JAMES, Defendant-Appellant.
UNPUBLISHED
A. Marvin Quattlebaum, Jr. Circuit Judge
Before the Court is the government's motion to dismiss Brandon James' appeal because James filed his notice more than three months after the deadline. In a counseled response, James asserts the government waived or forfeited the ability to move to dismiss because the government failed to do so within the informal response briefing order's deadline. We disagree with James' contention. We grant the government's motion to dismiss the appeal because James' appeal was untimely, and the government properly filed the motion within the formal briefing order's response period.
By way of background, James moved for compassionate release one year after his 18 U.S.C. 922(g)(1) plea and sentence. In July 2020, the district court denied James' motion under 18 U.S.C. § 3582(c)(1)(A)(i). James did not file his appeal until December, 2020. In a criminal case, a defendant's notice of appeal must be filed within 14 days after the district court has entered its judgment or an order denying the relief the defendant sought. Fed. R. App. P. 4(b)(1)(A)(i). James does not address why he waited so long to file the notice of appeal.
We issued an informal briefing order and James filed his informal brief within the designated time. The informal briefing order was issued under Local Rule 34(b) because James filed a pro se appeal from the district court's order denying his motion for compassionate release. See 4th Cir. R. 34(b). That Local Rule states that an "[a]ppellee is permitted, but not required, to file an informal response brief within 14 days after service of appellant's informal brief." Id. The informal briefing order provides an "[i]nformal response brief [is] permitted within 14 days after service of informal opening brief (filing of an informal response brief is not required)." (ECF No. 3). The government did not file a response during the informal briefing order's designated time-period.
Following a review of James' informal brief, we appointed counsel and issued a formal briefing order. That order provides that the "[f]ailure to file a response brief, or a motion to dismiss within the time allowed for filing a response brief may result in waiver of defenses or loss of the right to be heard at argument. FRAP 31(c); Local Rule 27(f)." (ECF No. 7). Both parties moved for and received two extensions of time to file their opening and response briefs, respectively.
The government moved to dismiss James' appeal before the deadline to file a formal response brief. In response to the motion to dismiss, James argues that the government waived or forfeited the ability to move to dismiss the appeal by failing to move during the informal briefing period. Following a suspension and then reinstatement of the formal briefing order, the government responded contending that the formal briefing response deadline is the controlling date as to when motions to dismiss should be filed.
We cannot agree that the government waived or forfeited its right to file a motion to dismiss. Nothing in the Federal Rules of Appellate Procedure nor our Local Rules require a motion to dismiss an appeal to be filed by the deadline for responding to an informal brief. In fact, the Local Rule detailing Motions for Summary Disposition states, "[m]otions to dismiss based upon the ground that the appeal is not within the jurisdiction of the Court or on other procedural grounds should be filed within the time allowed for the filing of the response brief." 4th Cir. R. 27(f)(2) (emphasis added). Local Rule 27(f)(2) does not differentiate between a response to a formal brief and a response to an informal brief, but the use of the non-mandatory word "should" counsels against waiver or forfeiture.
Further, under Local Rule 34(b), an "[a]ppellee is permitted, but not required to file an informal response brief within 14 days after service of appellant's informal brief." Waiver or forfeiture would not be appropriate when a response to an informal brief is not required under our Local Rules.
The orders from our Court are consistent with this result. Once again, the informal briefing order, tracking our Local Rule 34(b), stated that an "[i]nformal response brief [is] permitted within 14 days after service of informal opening brief (filing of an informal response brief is not required)." (ECF No. 3). This order did not mention motions to dismiss and, with respect to responsive briefs, provides that they are optional. In contrast, the formal briefing order stated that "[f]ailure to file a response brief, or a motion to dismiss within the time allowed for filing a response brief may result in waiver of defenses or loss of the right to be heard at argument. FRAP 31(c); Local Rule 27(f)." (ECF No. 7) This warning about the possible waiver if an appellee does not file a brief or move to dismiss in response to a formal brief, especially when compared to the absence of such language regarding informal briefs, indicates that the government was not required to move to dismiss prior to the deadline for responding to a formal brief.
The government's motion to dismiss is therefore granted and James' appeal is dismissed. The timeliness of a notice of appeal is a mandatory rule, and James did not appeal by the required deadline.
Entered at the direction of Judge Quattlebaum with the concurrence of Judge Niemeyer. Judge Diaz dissents.