                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-7-2007

USA v. Forchion
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1583




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"USA v. Forchion" (2007). 2007 Decisions. Paper 1653.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1653


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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 06-1583
                                      ____________

                            UNITED STATES OF AMERICA

                                              v.

                                 EDWARD FORCHION,

                                               Appellant
                                      ____________

                      On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                    (No. 04-mc-00949)
                          District Judge: Hon. Stewart J. Dalzell

                        Submitted Under Third Circuit LAR 34.1(a)
                                    January 25, 2007

      Before: SCIRICA, Chief Judge, FUENTES, and CHAGARES, Circuit Judges.

                                      ____________

                                 (Filed: February 7, 2007)


                               OPINION OF THE COURT


CHAGARES, Circuit Judge.

       Appellant Edward Forchion appeals his conviction for possession of a controlled

substance in a national park. Forchion argues that the pertinent national park regulation

unlawfully infringes on his Free Exercise Clause rights under the First Amendment.
Because Forchion failed to file a timely notice of appeal of his conviction to the District

Court, the District Court dismissed Forchion’s appeal for lack of subject matter

jurisdiction. We agree that Forchion’s appeal was untimely, and therefore will affirm the

District Court’s dismissal of Forchion’s appeal.

                                               I.

       As we write only for the parties, our summary of the facts is brief. On December

23, 2003, March 20, 2004, and April 17, 2004, National Park Service Rangers stationed at

Independence National Historical Park (“Independence Park”) issued citations to Forchion

for possession of a controlled substance in a national park in violation of 36 C.F.R. §

2.35(b)(2), arising out of Forchion’s possession and use of marijuana during rallies held at

Independence Park on these dates. Forchion and a co-defendant, Patrick Duff, were

charged with, inter alia, unlawful possession of a controlled substance. After a bench trial

before a Magistrate Judge, Forchion and Duff were convicted of misdemeanor marijuana

possession.1 On November 12, 2004, Forchion was sentenced to a 12-month term of

imprisonment, which was suspended, 12 months of probation, and a $150 fine. Forchion

timely appealed his sentence and conviction to the District Court. Thereafter, the District

Court affirmed Forchion’s conviction, but vacated the sentence and remanded for further

proceedings.




        1
         Duff is not a party to this appeal.

                                               2
       By Order dated January 30, 2006, the Magistrate Judge declined to impose a new

sentence on the grounds that Forchion had essentially completed the one-year probationary

sentence originally imposed in November 2005. On February 14, 2006, Forchion filed a

notice of appeal in the District Court which referred to the Magistrate Judge’s January 30,

2006 sentencing order, and the District Court’s July 22, 2005 Order affirming Forchion’s

conviction and vacating his sentence.

       By Order dated February 15, 2006, the District Court dismissed as untimely

Forchion’s appeal of the Magistrate Judge’s January 30, 2006 Order, given that Forchion

failed to file a notice of appeal within 10 days of that Order, as required by FED. R. APP. P.

4(b). With respect to Forchion’s appeal of the District Court’s July 22, 2005 Order, the

District Court forwarded that appeal to us, noting that it lacked appellate jurisdiction to

review its own decision. By letter dated February 23, 2006, we invited the parties to

submit supplemental filings to address the jurisdictional issue raised by the notice of

appeal. The Government submitted its response to this request on March 6, 2006; it does

not appear that Forchion filed any additional materials. Because the parties have had

ample opportunity to address the jurisdictional question presented, the matter is now ripe

for disposition.

                                              II.

       Before reaching the merits of this appeal, we are required to consider whether we

have appellate jurisdiction. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541

(1986). The timeliness of an appeal is a mandatory jurisdictional prerequisite. United

                                              3
States v. Robinson, 361 U.S. 220, 224 (1960). Based on the undisputed facts, Forchion’s

appeal of the Magistrate Judge’s January 30, 2006 Order was untimely. Like the District

Court, then, we lack jurisdiction to address the merits of Forchion’s challenge, and must

therefore dismiss his appeal.

                                              III.

       For the foregoing reason, we affirm the decision of the District Court dismissing

Forchion’s appeal for lack of jurisdiction.




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