UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4602

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WILBERT WILLESLEY GAYLE, a/k/a Oral Wellesley

Grigg, a/k/a Steve D. James,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Florence. Terry L. Wooten, District Judge.

(CR-03-281)

Submitted: May 4, 2005 Decided: May 24, 2005

Before NIEMEYER, LUTTIG, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Debra Y. Chapman, DEBRA CHAPMAN, P.A., Columbia, South Carolina,

for Appellant. Rose Mary Parham, OFFICE OF THE UNITED STATES

ATTORNEY, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
- 2 -

PER CURIAM:

Wilbert Willesley Gayle seeks to appeal his convictions

and sentence following his guilty plea to conspiracy to distribute

cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000) and

possession of a firearm by a convicted felon in violation of 18

U.S.C. §§ 922(g)(1), 924(a) (2000). Gayle’s attorney has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

asserting there are no meritorious grounds for appeal but raising

the issues of whether Gayle’s guilty plea was properly accepted by

the district court and whether his sentence was constitutional.

Gayle has been informed of his right to file a pro se supplemental

brief but has not done so.

In a criminal case, the defendant must file his notice of

appeal within ten days of the entry of judgment. Fed. R. App. P.

4(b)(1)(A). With or without a motion, the district court may grant

an extension of time to file of up to thirty days upon a showing of

excusable neglect or good cause. Fed. R. App. P. 4(b)(4); United

States v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985). When the

notice of appeal is filed more than thirty days after expiration of

the appeal period, neither the district court nor this court may

grant an extension. United States v. Schuchardt, 685 F.2d 901, 902

(4th Cir. 1982). The appeal periods established by Rule 4 are

mandatory and jurisdictional. Browder v. Director, Dep’t of Corr.,

434 U.S. 257, 264 (1978).
*

Although Gayle’s notice of appeal was post-marked July 22,

2004, and received by the district court on July 26, 2004, for the

purpose of this appeal we assume the date appearing on the notice

of appeal is the earliest date it could have been properly

delivered to prison officials for mailing to the court. See Fed.

R. App. P. 4(c); Houston v. Lack, 487 U.S. 266 (1988).

- 3 -

The district court entered its judgment on January 12,

2004; the ten-day appeal period expired on January 27, 2004. Gayle

filed his pro se notice of appeal on June 7, 2004,* beyond both the

ten-day appeal period and the excusable neglect period. Because

Gayle failed to file a timely notice of appeal, we dismiss the

appeal for lack of jurisdiction. 

This court requires that counsel inform her client, in

writing, of his right to petition to the Supreme Court of the

United States for further review. If the client requests that a

petition be filed, but counsel believes that such a petition would

be frivolous, then counsel may move in this court for leave to

withdraw from representation. Counsel’s motion must state that a

copy thereof was served on the client. 

We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

DISMISSED