United States of America v. Edward Bishop

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 19, 2021*
Decided July 20, 2021
Before
DIANE S. SYKES, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 21-1871
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDWARD BISHOP,
Defendant-Appellant.
Appeal from the United States
District Court for the Northern
District of Indiana, South Bend
Division.
No. 3:17-cr-55-RLM
Robert L. Miller, Jr., Judge.
Order
Edward Bishop sought compassionate release from prison, see 18 U.S.C. §3582(c)(1),
and the district court denied that motion on April 12, 2021. Bishop had until April 26 to
appeal or seek reconsideration. He did neither, though he did seek reconsideration on
* This successive appeal has been submitted to the original panel under Operating Procedure 6(b). We
have unanimously agreed to decide the case without argument because the briefs and record adequately
present the facts and legal arguments, and argument would not significantly aid the court. See Fed. R.
App. P. 34(a)(2)(C).

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No. 21-1871 Page 2
April 30 (or April 28, per the prison-mailbox rule). The district court denied that request
on May 5, and Bishop appealed on May 11.
The appeal is untimely. The United States has elected to stand on its right to have
an untimely appeal dismissed, even in a criminal case.
Although the appeal might be deemed timely with respect to the order of May 5,
the motion of April 30 (or April 28) was ineffectual. In civil cases, an untimely request
for reconsideration can be treated as a motion under Fed. R. Civ. P. 60(b). The Rules of
Criminal Procedure do not have an equivalent provision. The document that Bishop
filed in late April might perhaps be understood as a new request for compassionate
release, but that request would have been doomed by his failure to exhaust
administrative remedies before restarting the process. It seems best to treat the late-
April document as irrelevant to appellate jurisdiction and to dismiss the appeal as
untimely.

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