958 F. 2d 372 - United States v. Garner
958 F2d 372 United States v. Garner
958 F.2d 372
UNITED STATES of America, Plaintiff-Appellee,
v.
James Ronald GARNER, also known as Duck, Defendant-Appellant.
No. 92-5193.
United States Court of Appeals, Sixth Circuit.
March 23, 1992.
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
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Before NATHANIEL R. JONES and ALAN E. NORRIS, Circuit Judges, and JOINER, Senior District Judge.*
ORDER
Defendant was sentenced on April 19, 1990, to 136 months imprisonment for violations of 21 U.S.C. §§ 841(a) and 846. His appeal of that conviction was affirmed by this court on August 6, 1991. See United States v. James R. Garner, No. 90-5613 (6th Cir. August 6, 1991). On February 3, 1992, defendant filed a notice of appeal in the district court, designated as an appeal of sentence pursuant to 18 U.S.C. § 3742. The government now moves to dismiss the appeal for lack of jurisdiction.
A notice of appeal in a criminal action is required to be filed within ten days of the entry of the judgment. Rule 4(b), Fed.R.App.P. This requirement in mandatory and jurisdictional. United States v. Hatfield, 815 F.2d 1068, 1073 (6th Cir.1987). The statute providing for review of sentences, 18 U.S.C. § 3742, does not extend the time for filing a notice of appeal. The notice of appeal filed on February 3, 1992, is untimely and cannot confer jurisdiction in this court.
It therefore is ORDERED that the motion to dismiss is granted without prejudice to whatever rights defendant may have to seek review of his sentence in the district court pursuant to 28 U.S.C. § 2255.
The Honorable Charles W. Joiner, U.S. Senior District Judge for the Eastern District of Michigan, sitting by designation