On Appeal from the United States District Court for the District of New Jersey
Before: SLOVITER, Chief Judge, ROTH, Circuit Judge, and LUDWIG, *fn* District Judge
Submitted Pursuant to Third Circuit LAR 34.1(a)
Antoine Richmond appeals the order of the United States District Court for the District of New Jersey sentencing him to a 46-month prison term, the maximum term within the appropriate guideline range.
The unchallenged facts are that Richmond, a member of an organized car theft ring, was involved in the theft, sale, and delivery of numerous luxury automobiles to undercover FBI agents operating a sham auto leasing company, Southern Leasing Systems, Inc., in Kearney, New Jersey, as part of "Operation Road Spill," an assignment targeted at organized automobile theft rings. Between March 1993 and May 1994, Richmond participated in the sale of nineteen stolen luxury cars to those undercover agents.
On October 20, 1994, Richmond was indicted on one count of conspiring to possess and sell stolen motor vehicles which traveled in interstate commerce, in violation of 18 U.S.C. Section(s) 371, and 19 counts of possessing and selling stolen motor vehicles, in violation of 18 U.S.C.Section(s) 2313. Seven co-defendants were also charged with various counts.
Richmond pleaded guilty to count one of the indictment on December 9, 1994 and the district court released him on bail on December 12, 1994. Richmond fled, violating his bail provisions, and the court issued a warrant for his arrest. The federal warrant was served after Richmond was arrested on March 31, 1995 on another charge in Connecticut. Thereafter, he was returned to New Jersey for sentencing.
On September 26, 1995, the district court sentenced Richmond to 46 months imprisonment followed by three years of supervised release, and dismissed the remaining counts against him. Final judgment was issued on September 29, 1995. Richmond argues that because he was only 18 years old at the time of the offense, the district court abused its discretion when it ordered the maximum penalty under the guideline range.
The government challenges our jurisdiction on two independent grounds, first on the untimely notice of appeal and second on the lack of appellate jurisdiction to review a sentence within the guideline range.
Richmond's notice of appeal was not filed until October 31, 1995 considerably longer than the 10 days from the entry of the judgment or order on September 29, 1995 prescribed by Fed. R. App. P. 4(b) ...