Opinion
21-8032
06-09-2021
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TY ZIMMERSCHIED, Defendant-Appellant.
(D.C. No. 1:16-CR-00128-NDF-1) (D. Wyo.)
Before TYMKOVICH, Chief Judge, PHILLIPS, and CARSON, Circuit Judges.
ORDER
Appellant Ty Zimmerschied-a federal prisoner appearing pro se-seeks to appeal the district court's April 24, 2020 order denying his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction. Mr. Zimmerschied did not, however, file a notice of his intent to appeal that order until June 3, 2021. Upon consideration, the court dismisses Mr. Zimmerschied's appeal as untimely for the reasons discussed below.
In a criminal case (including a proceeding under 18 U.S.C. § 3582), a defendant must file a notice of appeal within 14 days after the district court enters the judgment or order he intends to appeal. See Fed. R. App. P. 4(b)(1)(A). Accordingly, Mr. Zimmerschied had until May 8, 2020 to file a notice of his intent to appeal the April 24, 2020 order. See Fed. R. App. P. 4(b)(1)(A); U.S. v. Randall, 666 F.3d 1238, 1240-41 (10th Cir. 2011) (§ 3582 motion addresses criminal matter such that Fed. R. App. P. 4(b) governs timeliness of appeal).
The timely filing of a notice of appeal denying § 3582 relief is not jurisdictional, but is "an inflexible claim-processing rule" that the court is not required to invoke unless the government first raises it. See United States v. Garduño, 506 F.3d 1287, 1290-91 (10th Cir. 2007). Nonetheless, Rule 4(b) implicates important judicial interests beyond those of the parties, and the court may dismiss an untimely criminal appeal of its own initiative when judicial and administrative resources are implicated and the delay has been "inordinate." United States v. Mitchell, 518 F.3d 740, 750 (10th Cir. 2008).
The court holds that dismissal of this appeal as untimely is appropriate under the circumstances here presented: the appeal implicates both judicial and administrative resources and the order Mr. Zimmerschied seeks to appeal became final more than a year ago.
APPEAL DISMISSED.