United States v. Lynn ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-7241
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRENDA LAY LYNN,
Defendant - Appellant.
Appeal from the United States District Court for the Northern Dis-
trict of West Virginia, at Martinsburg. Irene M. Keeley, District
Judge. (CR-94-130, CA-97-29-3)
Submitted: November 6, 1997 Decided: December 23, 1997
Before WIDENER and LUTTIG, Circuit Judges, and BUTZNER, Senior
Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Brenda Lay Lynn, Appellant Pro Se. Paul Thomas Camilletti, OFFICE
OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals the district court's order denying three
post-conviction motions. Insofar as appellant appeals the district
court's decision denying her motion filed under Fed. R. Civ. P.
60(b), we have reviewed the record and the district court's opinion
and find no reversible error. Accordingly, we affirm that order on
the reasoning of the district court. United States v. Lynn, No. CA-
97-29-3 (N.D.W. Va. July 21, 1997).
Insofar as appellant seeks to appeal from the motions filed
under 18 U.S.C. § 3553(b) (1994) seeking a reduction in sentence
and an evidentiary hearing in that matter, the notice of appeal was
untimely. We therefore dismiss the appeal as to those motions for
lack of jurisdiction. The time periods for filing notices of appeal
are governed by Fed. R. App. P. 4. These periods are "'mandatory
and jurisdictional.'" Browder v. Director, Dep’t of Corrections,
434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361
U.S. 220, 229 (1960)). Criminal defendants have ten days within
which to file in the district court notices of appeal from judg-
ments or final orders. See Fed. R. App. P. 4(b). The only exception
to the appeal period is when the district court extends the time to
appeal under Fed. R. App. P. 4(b) upon a showing of excusable
neglect. The district court entered its order denying the criminal
motions on July 21, 1997; Appellant's notice of appeal was filed in
the district court on September 2, 1997. Though the record contains
no certification of when she relayed her notice of appeal to prison
authorities for mailing to the district court, it appears that Ap-
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pellant mailed the document on August 26, 1997, beyond the ten-day
appeal period. Appellant's failure to obtain an extension within
the prescribed time frame leaves this court without jurisdiction to
consider the merits of Appellant's appeal.* 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.
AFFIRMED IN PART; DISMISSED IN PART
*
Appellant's § 3553(b) motion was untimely. Accordingly, we
conclude that remanding to the district court for assessment of
whether Appellant can demonstrate excusable neglect for her late
notice of appeal is not warranted.
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