NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 21-1269

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UNITED STATES OF AMERICA

v.

WILLIAM BONEY,

 Appellant

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On Appeal from the United States District Court

for the District of Delaware

(D.C. Crim. No. 1-11-cr-00055-001)

District Judge: Honorable Colm F. Connolly

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Submitted Pursuant to Third Circuit L.A.R. 34.1

on November 8, 2022

Before: JORDAN, SCIRICA, and RENDELL, Circuit Judges.

(Filed: December 9, 2022)

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OPINION*

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

constitute binding precedent.
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SCIRICA, Circuit Judge

William Boney, proceeding pro se, appeals the District Court’s order denying his 

motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). But, in his briefs, 

Boney does not address the court’s order, but rather argues that his sentence violates 

federal law. Accordingly, his filings can be construed as a motion to vacate, set aside, or 

correct sentence under 28 U.S.C. § 2255. Because Boney’s appeal is untimely and 

Boney’s filings do not satisfy the requirements for consideration of a second or 

successive § 2255 motion, we will dismiss Boney’s appeal.

I.

Boney was convicted by a jury of one count of conspiring to distribute 500 grams 

or more of cocaine, one count of attempting to retaliate against a government informant, 

and one count of solicitation of a person to retaliate against a government informant. 

United States v. Boney, 769 F.3d 153, 154–55 (3d Cir. 2014). The District Court 

sentenced Boney to a term of imprisonment of 220 months. Id. at 155. Boney appealed 

his conviction, and the United States cross-appealed his sentence, arguing the court erred 

in calculating the guideline range when it sentenced Boney. Id. We affirmed Boney’s 

conviction but vacated Boney’s sentence and remanded for resentencing, concluding that 

“the District Court misapplied the Sentencing Guidelines when it sentenced Boney.” Id.

On remand, the court sentenced Boney to 272 months of imprisonment. 

Boney subsequently moved to vacate, set aside, or correct his sentence under 28 

U.S.C. § 2255. The court denied Boney’s motion, and we denied Boney’s request for a 

certificate of appealability. Boney also filed a motion for compassionate release under 18 
3

U.S.C. § 3582(c)(1)(A) “based on his health conditions (asthma and Achalasia) in light of 

the COVID-19 pandemic and his purported rehabilitation since being incarcerated.” 

SAppx144. The court denied Boney’s motion for compassionate release, concluding, in 

part, that the factors set forth in 18 U.S.C. § 3553(a) did not weigh in favor of a sentence 

reduction. In particular, the court noted the dangerous nature of Boney’s crimes, which 

included attempting to kill a government informant, and the need to send a strong 

deterrent message with Boney’s sentence. 

Boney filed a notice of appeal of the court’s order denying his motion for 

compassionate release. 

II.1

Boney’s appeal fails for several reasons. First, Boney’s appeal is not timely. Under 

Federal Rule of Appellate Procedure 4(b)(1)(A), “a defendant’s notice of appeal must be 

filed in the district court within 14 days after . . . the entry of either the judgment or the 

order being appealed.” A defendant who is incarcerated, such as Boney, can satisfy this 

requirement by depositing the notice of appeal “in the institution’s internal mail system 

on or before the last day for filing” and submitting a notarized statement or declaration 

that is subscribed as true under penalty of perjury—or alternative evidence, “such as a 

postmark or date stamp”—establishing the date of deposit. See Fed. R. App. P. 4(c)(1). 

1 The District Court had subject matter jurisdiction under 18 U.S.C. § 3231, and we have 

jurisdiction under 28 U.S.C. § 1291. See United States v. Andrews, 12 F.4th 255, 259 (3d 

Cir. 2021). 
4

Here, the court’s order denying Boney’s motion for compassionate release was 

entered on December 16, 2020. Accordingly, Boney was required to file a notice of 

appeal by December 30, 2020. See Fed. R. App. P. 4(b)(1). Because Boney did not 

receive a copy of the court’s order until January 20, 2021, the court could—but did not—

extend the deadline by 30 days to January 29, 2021. See Fed. R. App. P. 4(b)(4) (“Upon a 

finding of excusable neglect or good cause, the district court may—before or after the 

time has expired, with or without motion and notice—extend the time to file a notice of 

appeal for a period not to exceed 30 days from the expiration of the time otherwise 

prescribed by this Rule 4(b).”). Although Boney indicated in the notice of appeal that it 

was deposited in the prison’s internal mail system on January 28, 2021, the notice of 

appeal was not accompanied by a notarized statement or declaration subscribed by Boney 

as true under penalty of perjury, establishing that it was, in fact, deposited on that date. 

Accordingly, the earliest the notice of appeal can be considered filed is February 11, 

2021, the date on which it was filed in the District Court. Because February 11, 2021 is 

after the deadline to file the notice of appeal and the Government has objected to Boney’s 

appeal as untimely, we must dismiss Boney’s appeal. See United States v. Muhammad, 

701 F.3d 109, 111 (3d Cir. 2012) (“The time limit for filing a criminal appeal set forth in 

Rule 4(b) is rigid but not jurisdictional, and may be waived if not invoked by the 

government. An untimely appeal must be dismissed, however, if the government 

objects.” (internal citations omitted)). 

Even if we considered Boney’s appeal, we would still affirm. In the notice of 

appeal, Boney indicated that he was appealing “the final judgment denying his Motion to 
5

Reduce Sentence pursuant to 18 U.S.C. § 3582(c)(1)(A).” SAppx138. But, in his 

subsequent briefs, Boney does not mention or address the court’s decision to deny his 

motion for compassionate release. “It is well settled that an appellant’s failure to identify 

or argue an issue in his opening brief constitutes waiver of that issue on appeal.” United 

States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005); see also Dophin v. Bank of Am. 

Mortg. Co., 641 F. App’x 131, 133 (3d Cir. 2016) (per curiam) (not precedential) (“While 

we read briefs filed by pro se litigants liberally, issues not briefed on appeal by a pro se 

litigant are deemed abandoned.” (citation omitted)). Accordingly, Boney has waived any 

argument that the court erred in denying his motion for compassionate release.

Even if Boney did not waive the compassionate release issue, though, the court 

still did not err in denying Boney’s motion. Under 18 U.S.C. § 3582(c)(1)(A), a district 

court “may reduce the term of imprisonment . . . after considering the factors set forth in 

section 3553(a) to the extent that they are applicable, if it finds that . . . extraordinary and 

compelling reasons warrant such a reduction.” “[A] grant of compassionate release is a 

purely discretionary decision,” United States v. Andrews, 12 F.4th 255, 259 (3d Cir. 

2021), and a district court may deny compassionate release if it determines that the 

factors provided in 18 U.S.C. § 3553(a) weigh against granting such release, see United 

States v. Pawlowski, 967 F.3d 327, 330 (3d Cir. 2020). We review a district court’s 

decision to deny a motion for compassionate release for abuse of discretion, and “we will 

not disturb the court’s determination unless we are left with ‘a definite and firm 

conviction that [it] committed a clear error of judgment in the conclusion it reached.’” 

Andrews, 12 F.4th at 259 (alteration in original).
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Here, the court did not abuse its discretion in denying Boney’s motion for 

compassionate release. The court thoroughly considered Boney’s motion and determined, 

in part, that the § 3553(a) factors did not weigh in favor of a sentence reduction. The 

court noted the seriousness of Boney’s offense and the danger that Boney poses to the 

community, stating:

Boney attempted to murder a government informant and was willing to 

murder that informant’s child. Boney committed this offense while he was 

on pre-trial supervision and after his attempts to pro-actively cooperate with 

the DEA broke down. Boney also attempted to intimidate another witness 

during trial by having his brother send to that witness the message that 

“snitches get laid in ditches.”

SAppx156–57. The court also noted that “[t]he nature and circumstances of the offense 

demonstrate that Boney was a sophisticated and violent drug dealer who trafficked in 

kilos of cocaine,” and the court concluded that “Boney’s conduct deserved a lengthy 

sentence to send a strong deterrent message, whereas a release now would allow him to 

evade almost half of his sentence.” SAppx157. Because the court did not abuse its 

discretion in denying Boney’s motion for compassionate release, we would have still 

affirmed the court’s judgment even if Boney’s appeal were timely and he had preserved 

the issue.

Rather than address the court’s decision denying his motion for compassionate 

release, Boney uses his briefs to argue his sentence violates federal law. Specifically, 

Boney asserts that 18 U.S.C. § 3742(b) requires the Government to receive “the personal 

approval of the Attorney General, the Solicitor General, or a deputy solicitor general 

designated by the Solicitor General” before it can appeal an otherwise final sentence. 
7

Appellant’s Suppl. Br. 4. Boney maintains the Government did not receive the necessary 

approval when it appealed Boney’s original sentence. Because the Government’s appeal 

was successful and ultimately resulted in the court resentencing Boney and increasing his 

sentence from 220 months to 272 months, Boney argues that his increased sentence 

violates federal law. 

Accordingly, Boney’s appeal is more appropriately construed as an attempt to 

collaterally attack his sentence under 28 U.S.C. § 2255(a) (“A prisoner in custody under 

sentence of a court established by Act of Congress claiming the right to be released upon 

the ground that the sentence was imposed in violation of the Constitution or laws of the 

United States . . . may move the court which imposed the sentence to vacate, set aside or 

correct the sentence.”). Boney previously filed a § 2255 motion in 2017. The court denied 

the motion, and we denied Boney’s request for a certificate of appealability. For Boney to 

receive consideration of a second or successive § 2255 motion, we must certify that the 

motion contains either newly discovered evidence of actual innocence or “a new rule of 

constitutional law, made retroactive to cases on collateral review by the Supreme Court, 

that was previously unavailable.” 28 U.S.C. § 2255(h). Because Boney’s motion does not 

contain evidence of actual innocence or invoke a new rule of constitutional law, we will 

dismiss it. 

III.

For the foregoing reasons, we will dismiss Boney’s appeal.