FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUG 15, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-11439

Non-Argument Calendar

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D. C. Docket No. 02-00011-CR-2

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

CASPER FRANKLIN BROWN, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(August 15, 2006)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:

In 2002, Casper Franklin Brown pled guilty to possession with intent to
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distribute 5 or more grams of crack, in violation of 21 U.S.C. § 841(a)(1). Over

three years later, Brown filed a motion to file a direct appeal out of time, which the

district court denied. After review, we affirm the district court’s denial of Brown’s

motion.

I. BACKGROUND

After Brown pled guilty, the district court sentenced Brown to 200 months’

imprisonment and 5 years’ supervised release and entered the judgment on July 10,

2002. After pronouncing the sentence, the district court advised Brown that he had

ten days to file an appeal, and Brown responded that he understood. However,

Brown did not file a direct appeal.

Three and a half years later, on January 10, 2006, Brown filed a “Motion

pursuant to Title 18 U.S.C. § 3742(a)(1),” in which he argued that he had received

ineffective assistance of counsel when his trial attorney failed to file a notice of

appeal as Brown requested. Brown did not explain why he had waited over three

years to file this motion.

The district court transmitted the motion to this Court. In turn, this Court

construed the motion as a motion for an out-of-time appeal and returned it to the

district court because Federal Rule of Appellate Procedure 4(b)(4) provides that

only the district court may grant an out-of-time appeal. The district court entered
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an order denying Brown’s motion, finding that Brown had “not established

sufficient reasons for seeking to file an appeal more than three and one-half years

after he was sentenced.” This appeal followed.

II. DISCUSSION

Ordinarily, a criminal defendant must file a notice of appeal within ten days

of the final judgment, as proscribed by Rule 4 of the Federal Rules of Appellate

Procedure. Fed. R. App. P. 4(b)(1)(A)(i); see also United States v. Phillips, 225

F.3d 1198, 1199 (11 Cir. 2000). This requirement is “jurisdictional and strictly th

applied.” Phillips, 225 F.3d at 1200. However, under Rule 4(b), upon a finding of

excusable neglect or good cause, the district court may extend the time for filing a

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

otherwise prescribed by Rule 4(b).” Fed. R. App. P. 4(b)(4); see also Dismuke v.

United States, 864 F.2d 106, 107 (11 Cir. 1989). We review for abuse of th

discretion the denial of a Rule 4(b) motion for leave to file an out-of-time appeal. 

Dismuke, 864 F.2d at 107.

Upon review of the record and the parties’ briefs, we discern no reversible

error. The district court concluded that Brown had not “established sufficient

reasons for seeking to file an appeal more than three and one-half years after he

was sentenced.” This determination was not an abuse of discretion given that
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Brown failed to give any explanation as to why he waited until January 10, 2006 to

file his motion when he was sentenced on July 9, 2002. Brown was fully informed

at sentencing that he had ten days to file a notice of appeal, and, by his own

admission, requested that his trial counsel do so after the sentencing. Brown

offered no basis for finding that his three and one-half year delay in filing his Rule

4(b) motion was due to excusable neglect or that good cause exists to permit him to

file an out-of-time appeal.

Furthermore, Rule 4(b)(4) prohibits a district court from extending the time

for filing a notice of appeal more than thirty days beyond Rule 4(b)’s ten-day

deadline. See United States v. Grant, 256 F.3d 1146, 1150-51 (11 Cir. 2001) th

(finding that defendant’s second notice of appeal was filed outside the 30-day

window of Rule 4(b)(4)). Brown sought to file his notice of appeal well beyond

this thirty-day period. The district court entered Brown’s judgment on July 10,

2002. See Fed. R. App. P. 4(b)(6). Under Rule 4(b)(1)(A)(i) and Rule 26(a), a

notice of appeal was due to be filed on July 24, 2002. Under Rule 4(b)(4), given

the proper circumstances, the district court was authorized to extend that deadline

to August 23, 2002, but no further. Therefore, the district court did not abuse its

discretion in denying Brown’s Rule 4(b) motion filed on January 10, 2006.

Finally, we note that Brown does allege in his motion that his counsel was
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ineffective for not filing a direct appeal. Alternatively, even if we were to construe

Brown’s motion as a motion brought pursuant to 28 U.S.C. § 2255, this does not

change the result. The one-year period for filing a § 2255 motion had expired by

January 10, 2006, and Brown set forth no facts which would arguably toll the

limitations period. See 28 U.S.C. § 2244(d)(1), (2); Steed v. Head, 219 F.3d 1298,

1300 (11 Cir. 2000) (holding that equitable tolling of § 2244(d)’s one-year

th

limitations period requires “extraordinary circumstances that are both beyond [the

defendant’s] control and unavoidable even with diligence,” which means more

than a “garden variety claim of excusable neglect” (quotation marks omitted)).

For all of these reasons, we affirm the district court’s denial of Brown’s

motion.

AFFIRMED.