United States of America v. David E. Malone

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 3, 2019 *
Decided April 5, 2019
Before
JOEL M. FLAUM, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18‐2965
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DAVID E. MALONE,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 05‐CR‐107‐1
Elaine E. Bucklo,
Judge.
O R D E R
David Malone is in prison for distributing cocaine.1 He moved the district court
to reduce his sentence under 18 U.S.C. § 3582(c)(2) in light of Sentencing Guidelines
Amendment 782, U.S.S.G. Supp. to App. C, Amend. 782 (2014), which reduced the base
offense levels for drug offenses. The district court denied the motion on July 12, 2018.
To appeal, Malone had until July 26, 14 days from the court’s judgment. See FED. R. A PP.
* We have agreed to decide this case without oral argument because the appeal is
frivolous. FED. R. A PP. P. 34(a)(2)(A).
1 This appeal is Malone’s third related to this offense. See United States v. Malone,
484 F.3d 916 (7th Cir. 2007); United States v. Malone, 305 Fed. App’x 299 (7th Cir. 2009).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 18‐2965 Page 2
P. 4(b)(1). The record shows, however, that he did not file the notice of appeal until
September.
On appeal, Malone asserts that he never received a copy of the judgment. But the
Federal Rules of Appellate Procedure preclude us from equitably tolling the time for
filing a notice of appeal. See FED. R. A PP. P. 26(b)(1); Nutraceutical Corp. v. Lambert,
139 S. Ct. 710, 714–15 (2019). The district court also did not extend the deadline for
doing so. And even if it had, it could have extended it only 30 days, until August 27.
See FED. R. A PP. P. 4(b)(4), 26(a)(1)(C). In that case, Malone’s appeal still would have
been late.
DISMISSED

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