United States v. Cabiness, 4th Cir. (2008)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 07-4343
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
KIRKWOOD DONNELL CABINESS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Norman K. Moon, District Judge.
(4:02-cr-70031-nkm-1)
Submitted:
June 6, 2008
Decided:
July 3, 2008
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam

opinion.
James J. OKeeffe, IV, GENTRY, LOCKE, RAKES & MOORE, Roanoke,

Virginia, for Appellant. John L. Brownlee, United States Attorney,
Donald R. Wolthuis, Assistant United States Attorney, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After
pleading
guilty
pursuant
to
written
plea
agreement to multiple drug-related offenses, Kirkwood Cabiness was

sentenced
to
180
months
imprisonment.
At
sentencing,
the
Government moved for a downward departure based on Cabiness

substantial assistance. Consequently, Cabiness was sentenced below
the applicable sentencing guidelines range and below the statutory
minimum sentence.
Subsequently, the district court granted the Governments
Fed. R. Crim. P. 35(b) motion for reduction of sentence in light of
Cabiness assistance in a state murder prosecution.
The court
reduced Cabiness sentence to 132 months imprisonment by written

order dated December 29, 2006 (December 2006 order) and entered
an amended judgment reflecting this sentence.
Cabiness moved to
reconsider the December 2006 order, claiming the district court did
not consider the full scope of his cooperation and contending his
sentence should be reduced by an additional thirty-four months.
The district court denied reconsideration by written order dated
March 9, 2007 (March 2007 order).
Cabiness filed a pro se motion
for leave to appeal both orders out of time on March 29, 2007.*
We first address the timeliness of Cabiness appeal of
the December 2006 and March 2007 orders.
In criminal cases, the
Prior to the district courts order concerning the timeliness

of Cabiness appeal, we directed the parties to address the
timeliness issue and appointed appellate counsel for Cabiness.
- 2 -
defendant must file his notice of appeal within ten days of the
entry of an order or judgment.
Fed. R. App. P. 4(b)(1)(A).
With
or without a motion, the district court may grant an extension of

time to file a notice of appeal of up to thirty days upon a showing
of excusable neglect or good cause.
Fed. R. App. P. 4(b)(4);
United States v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985).
time periods are mandatory and jurisdictional.
These
United States v.
Raynor, 939 F.2d 191, 197 (4th Cir. 1991).

By written order, the district court found Cabiness
notice of appeal was untimely as to the courts December 2006
order.
This finding was proper, as the notice of appeal was filed
outside the thirty-day extension period for excusable neglect or

good cause. We therefore dismiss Cabiness appeal to the extent he
challenges
the
underlying
December
2006
order
granting
the
Governments Rule 35(b) motion and imposing a term of 132 months

imprisonment.
Cabiness notice of appeal from the March 2007 order
denying reconsideration was filed during the thirty-day extension
period.
found
Exercising an abundance of caution, the district court
Cabiness
demonstrated
excusable
neglect
warranting
the
extension of time of the appeal period from the March 2007 order.
Cabiness appeal of the March 2007 order denying reconsideration is
therefore not time-barred.
- 3 -
To
the
extent
Cabiness
claimed
in
his
motion
for
reconsideration that the district court improperly elected not to

hold an evidentiary hearing in the sentencing reduction matter,
this claim is cognizable on appeal as an allegation that the
sentence
was
imposed
in
violation
of
law
under
18
U.S.C.
3742(a)(1) (2000).
See United States v. Pridgen, 64 F.3d 147,
149 (4th Cir. 1995).
We review for abuse of discretion.
at 150.
See id.
A court abuses its discretion when its ruling is based on
an erroneous view of the law or on a clearly erroneous assessment

Cooter & Gell v. Hartmax Corp., 496 U.S. 384,
of the evidence.
405 (1990).
In light of these principles and after careful review
of the applicable materials in the briefs and Joint Appendix, we

find no abuse of discretion.
Accordingly, we affirm the district courts March 2007
order and dismiss Cabiness appeal to the extent he challenges the
December 2006 order.
facts
and
materials
legal
before
We dispense with oral argument because the
contentions
the
court
are
adequately
and
argument
presented
would
not
in
the
aid
the
decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
- 4 -

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam

James J. OKeeffe, IV, GENTRY, LOCKE, RAKES & MOORE, Roanoke,

Unpublished opinions are not binding precedent in this circuit.

agreement to multiple drug-related offenses, Kirkwood Cabiness was

Government moved for a downward departure based on Cabiness

reduced Cabiness sentence to 132 months imprisonment by written

Cabiness filed a pro se motion

In criminal cases, the

Prior to the district courts order concerning the timeliness

Fed. R. App. P. 4(b)(1)(A).

or without a motion, the district court may grant an extension of

Fed. R. App. P. 4(b)(4);

Raynor, 939 F.2d 191, 197 (4th Cir. 1991).

This finding was proper, as the notice of appeal was filed

outside the thirty-day extension period for excusable neglect or

Governments Rule 35(b) motion and imposing a term of 132 months

Exercising an abundance of caution, the district court

reconsideration that the district court improperly elected not to

See United States v. Pridgen, 64 F.3d 147,

149 (4th Cir. 1995).

We review for abuse of discretion.

A court abuses its discretion when its ruling is based on

an erroneous view of the law or on a clearly erroneous assessment

In light of these principles and after careful review

of the applicable materials in the briefs and Joint Appendix, we

We dispense with oral argument because the

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