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w . v i l l a no v a . e du/thir dc ir c uit_2015/120NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 13

- 2623

_____________ UNITED STATES OF AMERICA

v.
P AUL BAUER , Appellant

_______________ On Appeal from the United States District Court for the Eastern Distri ct of Pennsylvania (D.C. No. 2

- 06

- cr
- 165

- 001 ) District Judge: Honorable Petrese B. Tucker

_______________ Submitted Under Third Circuit LAR 34.1(a)

January 22, 2015
Before: RENDELL , SMITH , and KRAUSE, Circuit Judges.

(Filed February 3 , 2015 )

______ _________ OPINION *

______________ KRAUSE, Circuit Judge

. Paul Bauer appeals the judgment of the District Court sentencing him to thirty

- six months’ imprisonment. His attorney has moved to withdraw under Anders v. California ,

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

arguing that Bauer’s appeal has no merit

. 1 We will grant the motion to withdraw, and as the government urges in its merits brief, will dismiss the appeal as untimely filed. 2 Bauer had fourteen days to appeal his judgment

. 3 Because he was incarcerated at the time, he benefits fr om the prisoner mailbox rule, which allows his appeal to be
considered docketed once it is placed in the institution’s internal mail system. 4 Because
Bauer’ s judgment was entered on May 9, 2013 , he was required to deposit his appeal no later than May 23, 2013. H is appeal was not deposited , however, until May 2 8, 2013. As we have noted, “Rule 4(b)’s deadline is rigid.” 5 The rule is no t jurisdictional,
but “ upon proper invocation [,] . . . when a notice of appeal is filed out of ti me, we must dismiss the ap peal.” 6 While t he G overnment should seek to have an untimely appeal
dismissed as early as possible , it may object “ at any point up to and including in its merits
brief , ” and w here, as here, the Government invokes Rule 4(b) in its merits brief, “ we
must

— an d will

— dismiss [a] concededly untimely appeal .” 7 Moreover, while a party
may move for the District Court to extend the appeal deadline by thirty days for good

1 3 86 U.S. 738 (1967 ).

2 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

3 Fed. R. App. P. 4(b)(1)(A).

4 Fed. R. App. P. 4(c).

5 Virgin Islands v. Martinez , 620 F.3d 321, 328 (3d Cir. 2010).

6 Id. at 328

- 29

. 7 United States v. Muhammud , 701 F.3d 109, 111 (3d Cir. 2012).3

cause or excusable neglect, Bauer did not do so , and t he record before us , in any event,
does no t demonstrate th at good cause exists

. Accordingly, we will grant Bauer’s attorney’s motion to withdraw and dismiss Bauer’s appeal. 8

8 Because we dismiss this action as untimely filed, we will also deny as moot Bauer’s motion for appointment of new counsel and for a stay of this proceeding

.