                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-6280


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

WILLIAM TERRENCE CROSS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:03-cr-00010-RBS-1)


Submitted:    July 30, 2009                   Decided:   August 4, 2009


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


William Terrence Cross, Appellant           Pro Se. Laura Pellatiro
Tayman,   Assistant  United States          Attorney, Newport News,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            By     judgment       entered       on    August      1,    2003,      William       T.

Cross was convicted by a jury of witness tampering, 18 U.S.C.

§ 1512(b)(1)       (2006),       and     retaliating            against      a    witness,       18

U.S.C. § 1513(b)(2) (2006). On appeal, this court affirmed his

convictions,       but     vacated        his        sentence          and       remanded       for

resentencing.          United States v. Cross, 371 F.3d 176 (4th Cir.

2004).          This      court        affirmed           the    sentence         imposed        at

resentencing.          United     States    v.       Cross,       No.   04-5030,         2005    WL

3452041 (4th Cir. Dec. 16, 2005) (unpublished).

            Seeking        a     second     direct          criminal         appeal      of     his

convictions, Cross filed a notice of appeal at the earliest on

January 22, 2009, of the district court’s pre-trial April 15,

2003,     order     denying       his     motion          to     dismiss         for    lack     of

jurisdiction.          The Government has moved to dismiss the appeal

because it is untimely.             Criminal defendants have ten days from

the entry of the judgment or order at issue to file a notice of

appeal.    See Fed. R. App. P. 4(b).

            While        Cross’s       appeal        is    clearly      untimely,         appeal

periods in criminal cases are not jurisdictional; rather, they

are “claim-processing rules” adopted by the Supreme Court that

do not affect this court’s subject-matter jurisdiction.                                         See

Bowles v. Russell, 551 U.S. 205, 208-13 (2007); United States v.

Frias,    521     F.3d    229,     233    (2d       Cir.    2008);      United         States    v.

                                                2
Mitchell, 518 F.3d 740, 744 (10th Cir. 2008).                       Despite the fact

that    the    time    limitations      imposed         by   Rule     4(b)    are     not

jurisdictional,        they   “must    be       enforced     by   th[e]   court       when

properly invoked by the government.” Mitchell, 518 F.3d at 744.

              Accordingly,     we     grant       the   Government’s         motion     to

dismiss the appeal as untimely filed.                   We deny Cross’s motions

for appointment of counsel and to dismiss for lack of subject

matter jurisdiction.          We dispense with oral argument because the

facts   and    legal    contentions     are       adequately      presented     in     the

materials     before    the    court    and      argument     would    not     aid    the

decisional process.

                                                                              DISMISSED




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