873 F. 2d 1441 - United States v. Chisolm

Mack Chisolm, a federal inmate, filed a motion for reduction of his sentence pursuant to Fed.R.Crim.P. 35(a), claiming he was entitled to relief under Ball v. United States, 470 U.S. 856 (1985). The district court rejected Chisolm's argument and denied the motion. Within 10 days of the entry of judgment, Chisolm completed service by mail of a motion for reconsideration and/or interlocutory appeal.* Shortly thereafter, Chisolm filed a separate notice of appeal. We lack jurisdiction to hear Chisolm's appeal.

Regardless of how it is styled, a postjudgment motion that is served within 10 days of the entry of judgment and calls into question the correctness of that judgment should be treated as a Rule 59 motion. See Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir.1978). As Chisolm's motion meets the above criteria, it is correctly construed as a Rule 59 motion. Dove, 569 F.2d at 809. This Rule 59 motion nullifies Chisolm's notice of appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982); Fed.R.App. 4(a)(4). Therefore, this Court is without jurisdiction to consider the merits of Chisolm's appeal until the district court rules on the motion to reconsider and thereafter Chisolm files a timely notice of appeal.

As the dispositive issues have recently been decided authoritatively, we dispense with oral argument and dismiss the appeal for lack of jurisdiction.

DISMISSED.