*

This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

May 21, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, Nos. 09-3162 & 09-3218

v. (D. Kansas)

MAURICE TROTTER, also known as

Mo,

Defendant - Appellant.

(D.C. No. 2:04-CR-20140-CM-1)

UNITED STATES OF AMERICA,

Plaintiff - Appellee, Nos. 09-3163 & 09-3219

v. (D. Kansas)

MARDELL TROTTER, also known as

Juice, also known as Del,

Defendant - Appellant.

(D.C. No. 2:04-CR-20140-CM-2)

ORDER AND JUDGMENT*

Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.

Appellate Case: 09-3218 Document: 01018426626 Date Filed: 05/21/2010 Page: 1
1

The four separate appeals are consolidated for the purpose of this

disposition.

2

In Kimbrough v. United States, the Court held district courts have

discretion to vary from the Sentencing Guidelines on the basis “that the

crack/powder disparity yields a sentence ‘greater than necessary’ to achieve [18

U.S.C.] § 3553(a)’s purposes, even in a mine-run case.” 552 U.S. 85, 110 (2007).

-2-

After examining the briefs and appellate records, this court has determined

unanimously that oral argument would not materially assist the determination of

these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.1

Maurice and Mardell Trotter “were tried together and convicted of

distribution and possession with intent to distribute significant quantities of

cocaine powder and crack cocaine as well as conspiracy to possess with intent to

distribute those substances.” United States v. Trotter, 483 F.3d 694, 697 (10th

Cir. 2007). On direct appeal, this court affirmed the Trotters’ convictions and

sentences. Id. at 703. The Supreme Court granted certiorari, vacated, and

remanded these cases for further consideration in light of Kimbrough v. United

States, 552 U.S. 85 (2007).2

 Trotter (Maurice) v. United States, 552 U.S. 1090

(2008); Trotter (Mardell) v. United States, 552 U.S. 1091 (2008). This court, in

turn, remanded the cases to the district court to clarify why it rejected the

Trotters’ requests for variances. United States v. Trotter (Maurice), 518 F.3d

773, 774 (10th Cir. 2008); United States v. Trotter (Mardell), 267 F. App’x 267,

267 (10th Cir. 2008). On July 11, 2008, the district court entered an order

Appellate Case: 09-3218 Document: 01018426626 Date Filed: 05/21/2010 Page: 2
-3-

clarifying it understood at the time of sentencing that it had discretion to vary

from the Guidelines on the basis of the crack/powder cocaine disparity, and had

refused to vary on the basis the sentences it imposed on Maurice and Mardell

were appropriate under the facts of these particular cases. Eleven months later,

on June 11, 2009, the Trotters filed a notice of appeal and a motion for extension

of time to file appeal (appeal nos. 09-3162, -3163). When the district court

denied the Trotters’ motion to extend the time to file a notice of appeal, the

Trotters filed a second notice of appeal (appeal nos. 09-3218, -3219).

The United States has moved to dismiss these appeals as untimely. We

grant the government’s motion and hereby dismiss these appeals. Fed. R. App. P.

4(b)(1)(A); United States v. Garduno, 506 F.3d 1287, 1290-91 (10th Cir. 2007)

(holding that although Rule 4(b)(1)(A) is not jurisdictional, it is an “inflexible

claim processing rule” “assur[ing] relief to a party properly raising” timeliness

(quotation omitted)). In so doing, we note specifically that the district court did

not abuse its discretion in denying the Trotters’ motion to extend the time for

filing notices of appeal. The language of Fed. R. App. P. 4(b)(4) makes clear that

the district court could only extend the time for filing a notice of appeal for thirty

days beyond Rule 4(b)(1)’s deadline. Fed. R. App. P. 4(b)(4). Because the

Trotters’ notice of appeal was filed more than ten months after the expiration of

the time for filing a notice of appeal set out in Rule 4(b)(1), the district court

correctly denied the Trotters’ motion to extend.

Appellate Case: 09-3218 Document: 01018426626 Date Filed: 05/21/2010 Page: 3
3

The Trotters assert this court should remand to the district court to

determine whether the Trotters’ counsel was ineffective in failing to file a timely

notice of appeal. They have not, however, cited a single case supporting such a

course of action in the face of an untimely notice of appeal. Instead, all of the

cases cited by the Trotters involve motions for relief from judgment pursuant to

28 U.S.C. § 2255.

-4-

Because the Trotters’ notice of appeal was not timely filed, this court

grants the government’s motion and DISMISSES these appeals.3

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

Appellate Case: 09-3218 Document: 01018426626 Date Filed: 05/21/2010 Page: 4