Appeal from the United States District Court for the Western District of Kentucky at Bowling Green. No. 1:08-cr-00052-1--Thomas B. Russell, District Judge.
Kevin M. Schad, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant.
Before: GIBBONS, SUTTON, and KETHLEDGE, Circuit Judges.
SUTTON, Circuit Judge.
With a district court's permission, Raymond Earl Burch, Jr., appealed the revocation of his term of supervised release after the fourteen-day deadline for filing a notice of appeal. The government moves to dismiss the appeal, claiming that the district court abused its discretion in excusing the notice's untimeliness. What looks like a simple extension motion (and a simple objection to it) raises a not-so-simple question: Must the United States file a cross-appeal to challenge the order on appeal or may it challenge the order through a motion to dismiss?
Before answering the question, it is worth filling in a few more details about what happened below. On August 21, 2014, the district court revoked Burch's term of supervised release. See 18 U.S.C. § 3583(e). Burch had the right to challenge the revocation on appeal, see id. § § 3557, 3742(a), though the statute does not specify the time within which he must appeal, id. § 3742(a). The relevant rules of procedure provide the deadline. Rule 4 of the Federal Rules of Appellate Procedure gives a criminal defendant fourteen days to file a notice of appeal, Fed. R. App. P. 4(b)(1)(A), and permits a district court to extend the time to file a notice for up to thirty additional days, id. 4(b)(4). On September 26, after the fourteen-day deadline had come and gone, Burch filed a notice of appeal and a request for an extension of time. The district court granted the requested extension on October 9, rendering his September 26 notice of appeal timely. See id.; United States v. Wrice, 954 F.2d 406, 409-10 (6th Cir. 1992). The government did not file an appeal (or cross-appeal) of the district court's October 9 order.
It now moves to dismiss Burch's appeal as untimely, alleging that the district court abused its discretion in granting the extension.
In the normal course, when an appellant files a notice of appeal after the deadlines specified by Appellate Rule 4, the appellee may file a motion to dismiss the untimely appeal with this court. Fed. R. App. P. 27; see, e.g., Hobbs v. Cnty. of Summit, 552 F.App'x 517, 519 (6th Cir. 2014) (per curiam); Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 267 (6th Cir. 1998). But what happens when the target of the appellee's argument is a prior order of the district court--in this instance its decision to grant an extension of time to the appellant to file his notice of appeal?
Two circuits have considered the situation and have come to different views. In a brief opinion, the Third Circuit rejected the motion to dismiss (in a civil case) and concluded that the appellee must " appeal from the order granting the extension of time to appeal." Amatangelo v. Borough of Donora, 212 F.3d 776, 780 (3d Cir. 2000). That is to say, in the absence of a separate appeal (or cross-appeal) challenging the granting of the extension motion, the court concluded that it lacked authority to dismiss the appeal.
The Tenth Circuit took the opposite position (in a criminal case) and permitted a motion to dismiss. " The office of a cross-appeal," it observed, " is to give the appellee more than it obtained by the lower-
court judgment." United States v. Madrid, 633 F.3d 1222, 1225 (10th Cir. 2011). But in the context of a granted extension, the court reasoned, no cross-appeal was needed because " the government was not seeking ...