                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 13-2623
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                     PAUL BAUER,
                                                   Appellant
                                    _______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 2-06-cr-165-001)
                      District Judge: Honorable Petrese B. Tucker
                                    _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 22, 2015

              Before: RENDELL, SMITH, and KRAUSE, Circuit Judges.

                                 (Filed February 3, 2015)
                                    _______________

                                        OPINION*
                                     ______________

KRAUSE, Circuit Judge.

       Paul Bauer appeals the judgment of the District Court sentencing him to thirty-six

months’ imprisonment. His attorney has moved to withdraw under Anders v. California,


       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
arguing that Bauer’s appeal has no merit.1 We will grant the motion to withdraw, and as

the government urges in its merits brief, will dismiss the appeal as untimely filed.2

       Bauer had fourteen days to appeal his judgment.3 Because he was incarcerated at

the time, he benefits from the prisoner mailbox rule, which allows his appeal to be

considered docketed once it is placed in the institution’s internal mail system.4 Because

Bauer’s judgment was entered on May 9, 2013, he was required to deposit his appeal no

later than May 23, 2013. His appeal was not deposited, however, until May 28, 2013.

       As we have noted, “Rule 4(b)’s deadline is rigid.”5 The rule is not jurisdictional,

but “upon proper invocation[,] . . . when a notice of appeal is filed out of time, we must

dismiss the appeal.”6 While the Government should seek to have an untimely appeal

dismissed as early as possible, it may object “at any point up to and including in its merits

brief,” and where, as here, the Government invokes Rule 4(b) in its merits brief, “we

must—and will—dismiss [a] concededly untimely appeal.”7 Moreover, while a party

may move for the District Court to extend the appeal deadline by thirty days for good


       1
           386 U.S. 738 (1967).
       2
        We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a).
       3
           Fed. R. App. P. 4(b)(1)(A).
       4
           Fed. R. App. P. 4(c).
       5
           Virgin Islands v. Martinez, 620 F.3d 321, 328 (3d Cir. 2010).
       6
           Id. at 328-29.
       7
           United States v. Muhammud, 701 F.3d 109, 111 (3d Cir. 2012).

                                              2
cause or excusable neglect, Bauer did not do so, and the record before us, in any event,

does not demonstrate that good cause exists.

       Accordingly, we will grant Bauer’s attorney’s motion to withdraw and dismiss

Bauer’s appeal.8




       8
        Because we dismiss this action as untimely filed, we will also deny as moot
Bauer’s motion for appointment of new counsel and for a stay of this proceeding.
                                               3
