USA v. Nicholas Wukoson

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12798
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NICHOLAS WUKOSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:18-cr-80166-DMM-1
____________________
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2 Opinion of the Court 23-12798
Before ROSENBAUM , L UCK, and A BUDU, Circuit Judges.
PER CURIAM:
Nicholas Wukoson appeals, pro se, following the denials of
his “Motion for Plain Error Review, Rule 52(b)” and motion for
reconsideration, which he filed in his closed criminal case. In re-
sponse, the government moved for summary affirmance, or, alter-
natively, to dismiss the appeal as untimely. Because the govern-
ment has raised the issue of timeliness in its motion to dismiss or
for summary affirmance, we must apply the time limits of Federal
Rule of Appellate Procedure 4(b). See United States v. Lopez, 562
F.3d 1309, 1312-14 (11th Cir. 2009) (explaining that the deadline in
Rule 4(b) for a defendant to file a notice of appeal in a criminal case
is not jurisdictional, but rather it is considered a claims-processing
rule).
Wukoson’s present notice of appeal was dated on August 22,
2023, so under the prison “mailbox” rule, it was deemed to be de-
livered to prison officials and filed with the court then, 145 days
after the district court’s March 30, 2023, order. Fed. R. App. P.
4(b)(1)(A). This was well beyond the 14-day period for appealing
and, furthermore, Wukoson was not eligible for relief under Rule
4(b)(4) because it was also beyond the additional 30 days during
which an extension was permissible. See Lopez, 562 F.3d at 1314
(noting that Rule 4(b)(4) allowed the district court to extend the
time for filing a notice of appeal by no more than 30 days after the
initial deadline).
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23-12798 Opinion of the Court 3
Accordingly, we GRANT the government’s motion to dis-
miss this appeal as untimely, and we DENY AS MOOT the gov-
ernment’s motion for summary affirmance.
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