United States v. Rosario , 52 F. App'x 215 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7022
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE PENA ROSARIO, a/k/a John Doe, a/k/a July,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Terrence W. Boyle, Chief
District Judge. (CR-96-62-BO)
Submitted: November 20, 2002 Decided: December 12, 2002
Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Jose Pena Rosario, Appellant Pro Se. Anne Margaret Hayes, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jose Pena Rosario seeks to appeal the district court order
denying relief on his motion to compel the Government to file a
Fed. R. Crim. P. 35 motion. The Government has moved to dismiss,
alleging Rosario did not timely file his notice of appeal. We grant
the Government’s motion to dismiss the appeal.
In criminal cases, the defendant is accorded ten days after
entry of the district court’s final judgment or order to note an
appeal, see Fed. R. App. P. 4(b)(1)(A), unless the district court
extends the appeal period under Fed. R. App. P. 4(b)(4). This
appeal period is “mandatory and jurisdictional.” United States v.
Raynor, 939 F.2d 191, 197 (4th Cir. 1991).
The district court’s order denying Rosario’s motion was
entered on its docket on May 20, 2002. Rosario filed a “Motion to
Prosecute the Appeal” that he averred he mailed no earlier than
June 11, 2002. The Government averred the motion was untimely
filed, and the district court denied Rosario’s “Motion to Prosecute
the Appeal” as time-barred. Because Rosario failed to file a timely
notice of appeal, we lack jurisdiction to review the district
court’s order. Accordingly, we grant the Government’s motion to
dismiss the appeal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
2
materials before the court and argument would not aid the
decisional process.
DISMISSED
3