     16-4158
     United States v. Clark


                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1                 At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 19th day of March, two thousand eighteen.
 4
 5   PRESENT:
 6               ROSEMARY S. POOLER,
 7               REENA RAGGI,
 8               CHRISTOPHER F. DRONEY,
 9                     Circuit Judges.
10   _____________________________________
11
12   United States of America,
13
14                             Appellee,
15                      v.                                                                16-4158
16
17   Kerry Clark, AKA Bembe, AKA Big Lips,
18
19                     Defendant-Appellant.*
20   _____________________________________
21
22   FOR APPELLEE:                                                          Nathan Rehn, Daniel B. Tehrani,
23                                                                          Assistant United States Attorneys, of
24                                                                          Counsel for Geoffrey S. Berman,
25                                                                          United States Attorney for the
26                                                                          Southern District of New York, New
27                                                                          York, N.Y.
28
29   FOR DEFENDANT-APPELLANT:                                               Kerry Clark, pro se, Ayer, MA




     * The Clerk of Court is respectfully instructed to amend the caption as above.
 1          Appeal from orders of the United States District Court for the Southern District of New

 2   York (Chin, J.).


 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 4   DECREED that the appeal is DISMISSED.

 5          Kerry Clark, pro se and incarcerated, appeals from the district court’s orders denying his

 6   motion to reduce his sentence under 18 U.S.C. § 3582(c)(2) and for reconsideration of that

 7   decision. The Government argues that the appeal is untimely. We assume the parties’ familiarity

 8   with the underlying facts, the procedural history of the case, and the issues on appeal.

 9          We agree with the Government and dismiss Clark’s appeal as untimely. A notice of

10   appeal in a criminal case must be filed within 14 days of the entry of the judgment or order being

11   appealed. Fed. R. App. P. 4(b)(1)(A); see also United States v. Arrango, 291 F.3d 170, 171 (2d

12   Cir. 2002) (applying time to appeal in a criminal case to § 3582 proceedings). Although Rule

13   4(b) is not jurisdictional, when “the government properly objects to the untimeliness of a

14   defendant’s criminal appeal, [it] is mandatory and inflexible.” United States v. Frias, 521 F.3d

15   229, 234 (2d Cir. 2008). Here, Clark’s November 2016 notice of appeal is untimely filed from

16   both the district court’s underlying June 2016 denial of his § 3582(c)(2) motion and its July 2016

17   denial of reconsideration. Because the Government objects, we must dismiss the appeal as

18   untimely.

19          Accordingly, we DISMISS the appeal as untimely filed.

20                                                 FOR THE COURT:
21                                                 Catherine O’Hagan Wolfe, Clerk of Court




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