Untimely Appeal Dismissed, Even Though District Court Failed to Inform Defendant

US v. Marsh: Marsh pleaded guilty to various fraud and related charges pursuant to a plea agreement that include a broad waiver of his appellate rights. He was sentenced to 78 months in prison (the bottom of the applicable Guideline range) and three years of supervised release. At no time during the sentencing hearing did the district court inform Marsh of his right to appeal and the deadline for filing a notice of appeal, as required by Rule 32(j) of the Rules of Criminal Procedure. Marsh eventually filed a notice of appeal months after his judgment was entered.

A divided Fourth Circuit dismissed the appeal because it was not timely filed. However, the court did first reject the Government’s argument that there was no Rule 32(j) violation because Marsh had waived his right to appeal, noting that even the broadest of waivers cannot cover every possible appellate issue. The court then turned to the issue of whether “a district court’s error in failing to inform a defendant at sentencing of a right to appeal can excuse a defendant’s late filing of a notice of appeal.” While noting that the appeal deadline in Rule 4(b) of the Rules of Appellate Procedure was a “nonjurisdictional claim-processing rule,” the court concluded that it must still be “strictly applied” if one of the parties properly raises. Therefore, the court could neither excuse the late filing nor could the deadline be equitably tolled. Marsh’s avenue for relief would be a 2255 motion where the error would not be the denial of a meritorious appeal, but of the appeal process itself.

Chief Judge Gregory dissented, arguing that he doubted that “the drafters of the relevant procedural rules at play in this case intended them to be read in a way that is more forgiving to judges than criminal defendants” and would remand the case to the district court for factual development as to whether equitable doctrines applied.