United States of America v. Randy L. Rohrbaugh

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4448
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RANDY L. ROHRBAUGH,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of West Virginia, at
Elkins. Thomas S. Kleeh, Chief District Judge. (2:06-cr-00019-TSK-MJA-1)
Submitted: February 16, 2023 Decided: February 21, 2023
Before GREGORY, Chief Judge, RUSHING, Circuit Judge, and FLOYD, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
ON BRIEF: Richard W. Weston, WESTON ROBERTSON, Hurricane, West Virginia,
for Appellant. William Ihlenfeld, United States Attorney, Wheeling, West Virginia,
Christopher L. Bauer, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Randy L. Rohrbaugh seeks to appeal the district court’s judgment revoking his
supervised release and sentencing him to 14 months’ imprisonment. The Government
asserts that the appeal is untimely and should be dismissed.
In criminal cases, the defendant must file the notice of appeal within 14 days after
the entry of judgment. Fed. R. App. P. 4(b)(1)(A). With or without a motion, upon a
showing of excusable neglect or good cause, the district court may grant an extension of
up to 30 days to file a notice of appeal. Fed. R. App. P. 4(b)(4). Although the appeal
period in a criminal case is not a jurisdictional provision, but rather a claim-processing rule,
United States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009), “[w]hen the Government
promptly invokes the rule in response to a late-filed criminal appeal, we must dismiss,”
United States v. Oliver, 878 F.3d 120, 123 (4th Cir. 2017); see United States v. Hyman,
884 F.3d 496, 500 (4th Cir. 2018).
The district court entered judgment on May 26, 2022. Rohrbaugh filed the notice
of appeal on August 8, 2022.* Because Rohrbaugh failed to file a timely notice of appeal
or to obtain an extension of the appeal period and the Government has promptly invoked
the appeal’s untimeliness, we dismiss the appeal. We dispense with oral argument because
* For the purpose of this appeal, we assume that the postmark date appearing on the
envelope containing the notice of appeal is the earliest date Rohrbaugh could have
delivered the notice to prison officials for mailing to the court. Fed. R. App. P. 4(c)(1);
Houston v. Lack, 487 U.S. 266, 276 (1988).

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the facts and legal contentions are adequately presented in the materials before this court
and argument would not aid the decisional process.
DISMISSED

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