BLD-156                                                            NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 13-3824
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                       MARC GILL,

                                            Appellant
                        __________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                             (D.C. Crim. No. 09-cr-00151)
                      District Judge: Honorable Peter G. Sheridan
                       __________________________________

                         Submitted for Possible Summary Action
                   Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                     January 16, 2014

            Before: AMBRO, CHAGARES and VANASKIE, Circuit Judges

                             (Opinion filed: January 24, 2014)
                                     ____________

                                        OPINION
                                      ____________

PER CURIAM

       Appellant Marc Gill appeals from an order of the District Court denying his

motion to modify sentence, 18 U.S.C. § 3582(c)(2). For the reasons that follow, we will

dismiss this untimely appeal for lack of appellate jurisdiction.
       Gill pleaded guilty in 2009 in the United States District Court for the District of

New Jersey to possession with intent to deliver crack cocaine, in violation of 21 U.S.C. §

841(a). With a total offense level of 34 and a criminal history category of VI, Gill’s

advisory Guidelines imprisonment range was 262–327 months. At sentencing, the

District Court found that Gill was a career offender. In anticipation of upcoming

amendments to the Guidelines, the District Court then applied the career offender

Guidelines that would have applied had Gill’s offense involved powder cocaine. The

adjusted Guidelines range was 151–188 months, and, on May 18, 2010, the District Court

sentenced Gill to a term of imprisonment of 162 months. Gill did not appeal the criminal

judgment.

       Subsequently, the U.S. Sentencing Commission promulgated Amendment 750,

which lowered the base offense levels for crack cocaine. After the Commission made

Amendment 750 retroactive, Gill moved under 18 U.S.C. § 3582(c)(2) for a reduction of

sentence. In an order entered on June 4, 2013, the District Court denied the motion.

       Apparently, Gill did not timely receive a copy of the District Court’s order

denying his section 3582(c)(2) motion. On or about July 2, 2013, Gill wrote to the

District Court to inquire about the status of his motion. After finally receiving a copy of

the order denying his motion (on July 23, 2013), Gill moved on August 1, 2013, for an

extension of time in which to file a notice of appeal. In that motion, he speculated that

the District Court Clerk’s Office had mailed a copy of the order denying his motion to his

former counsel when it was first issued; if so, counsel had not passed the order on to him.



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The District Court granted Gill’s motion to extend the time to appeal, and then, on

August 16, 2013, Gill filed his notice of appeal.

       Our Clerk advised the parties that we might act summarily to dispose of the appeal

pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6, and invited responses. The

Government submitted a response, in which it moved to dismiss the appeal for lack of

appellate jurisdiction as untimely filed, invoking Federal Rule of Appellate Procedure

4(b)’s “rigid” deadline.

       We will dismiss the appeal for lack of appellate jurisdiction because it was not

timely filed. The time limit for filing a criminal appeal set forth in Rule 4(b) is rigid but

not jurisdictional; it may be waived if not invoked by the Government. See Bowles v.

Russell, 551 U.S. 205, 212 (2007). An untimely appeal must be dismissed, however, if

the Government objects. Gov’t of the Virgin Islands v. Martinez, 620 F.3d 321, 328-29

(3d Cir. 2010). In United States v. Muhammud, 701 F.3d 109 (3d Cir. 2012), we held

that the Government may object to timeliness “at any point up to and including in its

merits brief.” Id. at 111. Here, the Government has objected in its summary action

response and invoked Rule 4(b). Therefore, we must dismiss the appeal if it is indeed

untimely.

       We conclude that the appeal is untimely filed. Under Rule 4(b), Gill had 14 days

to appeal from June 4, 2013, the date when final judgment on his section 3582(c)(2)

motion was entered. Fed. R. App. P. 4(b)(1)(A)(i). Gill did not file his notice of appeal

until 73 days following entry of that order. Accordingly, it was untimely filed unless Gill

was entitled to an extension. Under Rule 4(b)(4), “[u]pon a finding of excusable neglect

                                              3
or good cause, the district court may -- before or after the time [to appeal] 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). Fed. R. App. Pro. 4(b)(4) (emphasis added). Accordingly, the District Court had no

authority to extend Rule 4(b)(1)(A)’s time limit by more than 30 days beyond the original

deadline. This 30-day period expired on July 18, 2013, nearly a month before Gill filed

his notice of appeal.

       We note that Gill sent a letter to the District Court in early July 2013, and thus

before the maximum 30-day extension period expired. The letter does not qualify as a

notice of appeal. Gill simply asked about the status of his case; he did not indicate an

intent to appeal any judgment or otherwise comply with Rule 3, Fed. R. App. Pro.

3(c)(1)(A)-(C). A status request is not the equivalent of a notice of appeal. In addition,

the District Court’s alleged failure to notify Gill of the denial of his section 3582(c)(2)

motion does not excuse his untimely appeal. Where, as here, Rule 4(b) does not

“provid[e] otherwise, the clerk’s failure to give notice does not affect the time to appeal,

or relieve—or authorize the court to relieve—a party’s failure to appeal within the

allowed time.” Fed. R. Crim. Pro. 49(c). Cf. Baker v. United States, 670 F.3d 448, 461

(3d Cir. 2012) (“[W]here . . . the delay is caused by the clerk’s office, the rule of Fiorelli

and Grana does not apply”).1


       1
         In any event, Gill’s section 3582(c)(2) motion certainly appears to lack merit. A
“defendant may be eligible for a reduction of sentence if the sentence was ‘based on a
sentencing range that has subsequently been lowered by the Sentencing Commission’ and
if ‘a reduction is consistent with applicable policy statements issued by the Sentencing
                                              4
       For the foregoing reasons, we will dismiss the appeal for lack of appellate

jurisdiction as untimely filed.




Commission.’” United States v. Flemming, 723 F.3d 407, 410 (3d Cir. 2013) (quoting 18
U.S.C. § 3582(c)(2)). The applicable Guidelines range for a defendant like Gill is the
range calculated pursuant to the career offender guideline, U.S.S.G. § 4B1.1, and not the
range calculated after applying any departure or variance. Flemming, 723 F.3d at 412.
Gill’s section 3582(c)(2) motion lacked merit, at a minimum, because Amendment 750
did not reduce Gill’s career offender guideline range. See id. at 413.
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